                        UNITED STATES COURT OF APPEALS
                            FOR THE EIGHTH CIRCUIT


                                 No. 96-1960


VIETCHAU NGUYEN,                         *
                                         *
           Plaintiff-Appellant,          *
                                         *
          v.                             *
                                         *          Appeal from the United
States
UNITED STATES OF AMERICA,                *          District Court for the
District
                                         *          of Minnesota
           Defendant-Appellee.           *
                                         *


                         Submitted:    November 19, 1996

                                                    Filed: May 19, 1997



Before BEAM, FRIEDMAN1, and LOKEN, Circuit Judges.



FRIEDMAN, Circuit Judge.

      The United States District Court for the District of Minnesota2denied
the appellant Nguyen's motion to vacate his conviction and sentence
following his guilty plea.     Nguyen contended that his plea was involuntary.
The district court denied the motion without an evidentiary hearing.              We
affirm.




      1
         DANIEL M. FRIEDMAN, of the United States Court of Appeals for the Federal
Circuit, sitting by designation.
      2
         The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
                                     I.


     A.   Nguyen, born and raised in Vietnam, came to the United States
where he earned bachelor's and master's degrees in civil engineering at the
University of Minnesota and a Doctorate in engineering at Princeton
University.   He became president of an environmental consulting firm called
Earth, Water and Air, Incorporated ("the Company"), of which a close friend
became vice president.    The Company served various governmental entities
and others.


     One of its clients was the Yakima Indian Nation ("Yakima"), to which
the United States Department of Energy had made a grant to study the
effects of locating a nuclear waste disposal facility on Yakima land.    As
Nguyen acknowledges in his brief, Yakima hired the Company to advise it on
the environmental effects of thus locating the facility.    Although Yakima
hired the Company, the government (specifically, the Department of Energy)
provided grants to the Yakima to pay for the Company's consulting services.




     On September 21, 1990 Nguyen, the Company's vice president and the
Company were indicted in the United States District Court for the District
of Minnesota in 25 counts charging wire and mail fraud, false statements
to the government, transportation of stolen goods, and conspiracy to
defraud the United States.   A number of the counts charged the defendants
with submitting false vouchers to the Yakima that substantially overstated
the amounts due the Company because the vouchers were based upon an
overstatement of the number of hours Company employees had worked for the
Yakima.


     Nguyen, represented by counsel, entered into a written plea agreement
in which he agreed to plead guilty to one count of the indictment (count
IX) charging mail fraud and to a one count information charging conspiracy
to defraud the United States, and the government agreed to dismiss the
remaining counts of the indictment against him.     The plea agreement also
stated that nothing therein "will prevent the recovery or attempted




                                     2
recovery       of   restitution   or   penalties     through     appropriate        civil
proceedings."        The conduct charged in count IX occurred before the
effective date of the United States Sentencing Guidelines.


          After an extensive hearing on November 30, 1990, the district
      3
court held that the plea was "a completely free and voluntary and knowing
one" and accepted it.         At the hearing, at which Nguyen's counsel was
present, the prosecutor read the plea agreement, and Nguyen stated that
that was the agreement he had entered and those were the terms to which he
had agreed.


          In sworn testimony and by yes or no answers in response to questions
by the court, Nguyen stated: (1) that he "had plenty of opportunity to
discuss these charges with [his] attorney, to discuss with him [his]
possible defenses at trial, to discuss [his] other rights, and to discuss
the   idea     of pleading guilty"; (2) that he was "satisfied with the
representation that [he had] received from [his] attorney" and that he
"believe[d]" his counsel has "been a good lawyer, as far as [he is]
concerned"; (3) that no "force" or "threats" have "been used with or
against [him] to get [him] to come into court this morning and plead
guilty" and that no "promises [had] been made to [him] of any kind, other
than what's been stated in this plea agreement."
          In response to questions by his counsel, Nguyen (still under oath)
stated in yes or no answers that, with respect to the contract involved in
count IX, which had been signed by the predecessor president of the
Company, he was "aware" that the "application forms" submitted to the
government "were false in a number of ways and still were submitted" and
were "false in their representations as to the experience of certain of the
employees which were listed on those forms," and he added that "the
experience was not from our EWA company," and acknowledged that their
experience was "misrepresented"; that "[t]he




          3
         The Honorable Harry H. MacLaughlin, United States District Judge for the
District of Minnesota.

                                           3
application also overstated the number of employees which EWA had at the
time"; that "during the course of work performed under this contract in
1986 and 1987, there were also some hours billed to the COE [Corps of
Engineers]   which   were   hours   for   which   work   actually   had   not   been
performed"; that in 1985 and 1986 there were "employees who charged time
which they had worked on other contracts independent of the YIN [Yakima
Indian Nation] contract to the YIN contract" and that he was "aware" that
two employees had "charge[d]" work to the Yakima contract that they had not
done under that contract.
     In connection with his yes or no answers to questions by his counsel,
Nguyen volunteered some incriminating statements.        In stating that work had
been done "on the so-called Defense Waste Project," Nguyen stated: "we know
that it was not authorized by the U.S. Department of Energy, and we billed
it to the Yakima Indian Nation without the DOE authorization, sir."               He
also stated that he had "order[ed]" an employee "to provide quality
assurance and review some of our work.            And I know that it was not
authorized by the U.S. Department of Energy, and I did charge that time to
the contract, sir."


     Nguyen then stated, in response to a question by the court, that his
"answers to" "each questions [sic] that's been asked of you here this
morning" have been "true and correct."


     On April 9, 1991, Nguyen was given concurrent sentences of thirty-
three months imprisonment on the two counts of which he was convicted.
Almost four months later, on August 5, 1991, he moved under Rule 35 of the
Federal Rules of Criminal Procedure for a reduction of sentence, which the
district court denied.


     B.   On August 23, 1993, Nguyen moved, pursuant to 28 U.S.C. 2255, to
vacate his conviction and sentence on the ground that his guilty plea was
coerced and involuntary.      This was 32 months after he pleaded guilty on
November 30, 1990, 28 months after he had been sentenced, and 24 months
after he had moved for a reduction of sentence.          Nguyen




                                          4
had been released from confinement and his probation ended on the date he
filed the 2255 motion.


     A lengthy declaration by Nguyen accompanied the motion, in which he
contested most of the statements he had made at the plea hearing.
According to Nguyen, his plea was involuntary because (1) he had been
denied    effective   assistance   of    counsel   because   his     counsel    was   not
adequately prepared for trial, as a result of which he had been coerced and
induced to plead guilty; (2) the government had coerced his guilty plea by
threatening that otherwise (a) it would file a civil liability suit against
him and the Company and (b) it would seek application of the Sentencing
Guidelines, with their harsher penalties, and by insisting that his guilty
plea be "part of a package" under which his individual co-defendant also
would plead guilty; and (3) the government had failed to turn over to him
documents it had obtained from the Company under a search warrant, which
allegedly would have established his innocence.           He asserted that he was
innocent of the crimes to which he had pleaded guilty.


     The district court denied the motion without a hearing, ruling that
Nguyen's "guilty plea was knowing and well-advised."           The court ruled that
Nguyen "made no showing that he received ineffective assistance [of
counsel], or that any alleged ineffectiveness prejudiced his defense."                The
court rejected his claim that the government had coerced his plea by
threatening    a   civil   suit   or   seeking   application    of    the   Sentencing
Guidelines.     The court stated that Nguyen "may have felt overwhelmed by
such information, but he could not have proceeded in a knowing and informed
fashion without it."       With respect to Nguyen's claim that the government
withheld    exculpatory     documents,    the    court   "determine[d]         that   the
disclosures would not have affected petitioner's decision whether to
plead."    Finally the court "reject[ed]"

              petitioner's claims of innocence. A review of the
              transcript of petitioner's change of plea hearing
              reveals   that   he   volunteered  a  number    of
              incriminating statements under oath. At no time




                                          5
             during or after the plea hearing did petitioner
             proclaim his innocence. He now claims he lied at
             the change of plea hearing, but the record shows no
             indication of falsehood. He would prefer that the
             Court accept his present, unsworn statements over
             his previous sworn testimony at his plea hearing.
             At best, he presents himself as a perjurer at his
             plea hearing. Faced with this material, the Court
             credits petitioner's prior sworn statements.


     (Although Nguyen had completed his imprisonment and supervised parole
prior to the district court's adjudication, "[t]he case is nevertheless not
moot, because the federal conviction could have collateral consequences in
the future, and [Nguyen] was still in federal custody when he instituted
these § 2255 proceedings," Clemmons v. United States, 721 F.2d 235, 237 n.3
(8th Cir. 1983); see also Leonard v. Nix, 55 F.3d 370, 372-73 (8th Cir.
1995), since "[a] probationary term is sufficient custody to confer
jurisdiction" under § 2255.      United States v. Spawr Optical Research, Inc.,
864 F.2d 1467, 1470 (9th Cir. 1988), cert. denied, 493 U.S. 809 (1989).
See also Jones v. Cunningham, 371 U.S. 236, 243 (1963); Jones v. Jerrison,
20 F.3d 849, 852 n.2 (8th Cir. 1994).


                                         II.


     "While a guilty plea taken in open court is not invulnerable to
collateral    attack   in   a   post   conviction   proceeding,   the   defendant's
representations during the plea-taking carry a strong presumption of verity
and pose a `formidable barrier in any subsequent collateral proceedings.'"
Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985) (citations
omitted).    Here, as shown in part I, during the plea hearing Nguyen stated
that he was satisfied with his lawyer and that no threats or promises had
been made to induce him to plead guilty, and admitted his guilt and
volunteered statements that confirmed that admission.         Nguyen has a heavy
burden to overcome those admissions and show that his plea was involuntary.
See Blackledge v. Allison, 431 U.S. 63, 72-74 (1977); United States v.
Goodman, 590 F.2d 705, 710 (8th Cir.), cert. denied, 440 U.S. 985 (1979).




                                          6
        Nguyen sought to vacate his guilty plea on three grounds: (1) that
he had been denied effective assistance of counsel, who allegedly was
unprepared for trial; (2) that the government had coerced him into agreeing
to plead; and (3) that the government had refused to produce documents that
allegedly would have established his innocence.


        The nature of these allegations shows that, at the time he entered
the plea,    Nguyen was aware of the bases upon which he now challenges his
plea.    In that situation one would expect that a defendant promptly would
make any challenge he had to the propriety of his plea.              Instead, Nguyen
waited almost 32 months after his plea and 24 months after he was sentenced
before challenging the voluntariness of his plea.              This delay sharply
contrasts with his filing of his motion to reduce sentence less than four
months after sentence was imposed.           If Nguyen then believed that he had
been denied effective assistance of counsel and coerced into pleading and
that his plea was involuntary, it is difficult to understand why he waited
to raise that issue until he had been released from confinement.             Although
Nguyen stated in his § 2255 motion that he had "only recently become aware
of the significant inadequacies in [his] prior representation" and "was
unaware of any basis to challenge [his] guilty plea," the grounds upon
which he seeks to vacate his plea belie those assertions.


        A movant is not entitled to an evidentiary hearing on a § 2255 motion
if "the motion and the files and records of the case conclusively show that
the [movant] is entitled to no relief."         Voytik, 778 F.2d at 1308.       Under
that standard, the district court correctly denied Nguyen's motion without
a hearing.


        A.   Nguyen's argument that he received ineffective assistance of
counsel is that his lawyer was not adequately prepared for trial because
he did not prepare Nguyen to testify, did not hire expert witnesses, and
neglected to interview "important witnesses," and that such ineffective
assistance "coerced" him to plead guilty.              To sustain an ineffective
assistance    of   counsel   claim,   Nguyen    must   show   that   (1)   "counsel's
representation fell




                                         7
below an objective standard of reasonableness," Strickland v. Washington,
466 U.S. 668, 688 (1984), and (2) 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 .   Where a guilty plea is challenged
under the second prong of the Strickland test the "defendant must show that
. . . he would not have pleaded guilty and would have insisted on going to
trial."   Hill v. Lockhart, 474 U.S. 52, 58-59 (1985) (footnote omitted);
see Voytik, 778 F.2d at 1310.    In determining whether counsel's conduct was
objectively reasonable, there is a "strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance."
Strickland, 466 U.S. at 689.


     Nguyen's belated claim that his counsel had not represented him
effectively is flatly contradicted by his contemporaneous statements at the
plea hearing that he was "satisfied with the representation [he had]
received" and that he "believed" that his counsel had "been a good lawyer."
The record at the plea hearing supported those statements.     A letter from
his counsel stated that "many hours have been expended in discussing the
essential allegations involved in your case, reviewing available business
records . . . and investigating the circumstances involved to determine the
motivations behind those allegations."      Moreover, as the district court
pointed out, his counsel negotiated a plea agreement under which he pleaded
guilty to two counts of a twenty-five count indictment and was given
concurrent sentences of thirty-three months under each count, which "was
a good deal and is an objectively prudent plea negotiation."   We agree with
the district court that Nguyen has not shown that he received ineffective
assistance, or that any alleged ineffectiveness prejudiced his defense.


     Nguyen further argues that his attorney coerced him into pleading
guilty because he told Nguyen that he had no chance of winning, promised
that Nguyen would receive six months, or less, of jail time if he pleaded
and promised that the government would not file a civil suit if he
cooperated by pleading guilty.   At the plea hearing, however, Nguyen stated
that he understood that the maximum possible sentence was five years




                                      8
imprisonment and a $250,000 fine, and that no promises were made "other
than what's been stated in this plea agreement that's been read allowed
[sic]    here    in   court."     The   plea       agreement   explicitly   reserved   the
government's right to file a civil suit.              Nguyen's allegations that he was
coerced to plead guilty by false promises by his counsel fails to overcome
the "strong presumption of verity" that attached to statements made in
"open court."         Blackledge, 431 U.S. at 74; see also United States v.
Peeler, 738 F.2d 246, 251 (8th Cir.), cert. denied, 469 U.S. 936 (1984).


        B.    Nguyen contends that the government "coerced" him to plead guilty
by threatening that otherwise it would file a civil suit against him and
the Company to recover the alleged overcharges and seek application of the
Sentencing Guidelines.          These alleged threats are accurate statements of
what the prosecutor might have done if Nguyen had gone to trial.                  "While
confronting a defendant with the risk of more severe punishment clearly may
have a `discouraging effect on the defendant's assertion of his trial
rights, the imposition of these difficult choices [is] an inevitable' --
and permissible -- `attribute of any legitimate system which tolerates and
encourages the negotiation of pleas.'"                Bordenkircher v. Hayes, 434 U.S.
357, 364 (1978) (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 31 (1973)).



        Nguyen argues that he was "forced" to plead guilty because his plea
bargain was a "package plea," which also involved his friend, the Company's
vice president.        "`[T]here is no constitutional right to plea bargain.'
It is the prosecutor's prerogative to offer a `package deal' or no deal at
all."        United States v. Gonzales, 65 F.3d 814, 823 (10th Cir. 1995)
(quoting Weatherford v. Bursey, 429 U.S. 545, 561 (1977)), vacated on other
grounds, 513 U.S. 132 (1997)); see also United States v. Wheat, 813 F.2d
1399, 1405 (9th Cir. 1987) (allowing the use of "package pleas"), aff'd on
other grounds, 486 U.S. 153 (1988).


        C.    Nguyen's final claim is that the government wrongfully withheld
exculpatory




                                               9
documents, in violation of Brady v. Maryland, 373 U.S 83 (1963), that would
have established his innocence.       Those were documents the government had
obtained from the Company pursuant to a search warrant.


       In considering a claim that a guilty plea was involuntary because of
the government's failure to disclose exculpatory material, the courts have
"evaluated the validity of the challenged plea in light of all the
attendant circumstances [including] the assistance of counsel, a plea
taking procedure compliant with Boykin v. Alabama, and a factual basis for
the plea."     Campbell v. Marshall, 769 F.2d 314, 323-4 (6th Cir. 1985),
cert. denied, 475 U.S. 1048 (1986)).        See e.g. White v. United States, 858
F.2d 416, 422 (8th Cir. 1988), cert. denied, 489 U.S. 1029 (1989); Fambo
v. Smith, 433 F. Supp. 590 (W.D.N.Y.), aff'd, 565 F.2d 233 (2d Cir. 1977).
Under White, one of those attendant circumstances is the benefit the plea
gave the defendant.      White, 858 F.2d at 424.


       All   the   allegedly   exculpatory      material   that   Nguyen   claims   the
government withheld came from the books and records of his own company,
with   which   Nguyen   presumably   was    familiar.      Moreover,   Nguyen's     own
statements at the plea proceeding "fully establish[ed] his factual guilt."
Id. at 422.    Nguyen narratively stated that he knew that a certain charge
"was not authorized by the U.S. Department of Energy, and we billed it .
. . without the DOE authorization,"         and that "I order [sic] the employee
to . . . provide quality assurance and review some of our work.             And I know
that it was not authorized by the U.S. Department of Energy, and I did
charge that time to the contract, sir."


       Considering all the circumstances, the allegedly withheld allegedly
exculpatory material "did not compromise either the truth or the voluntary
and knowing nature of the plea."            Campbell, 769 F.2d at 324.         As the
district court held, there is no reason to believe that Nguyen's possession
of that material would have led him to go to trial instead of pleading
guilty.




                                           10
                               Conclusion


     The order of the district court denying Nguyen's § 2255 motion to
vacate his sentence is affirmed.


     A true copy.


           Attest.


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




                                   11
