
USCA1 Opinion

	




          March 2, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2281                                    J. MICHAEL ANY,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________        No. 94-1340                                   J. MICHAEL ANY,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                _____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Rya W. Zobel, U.S. District Court Judge]                                        _________________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                    Circuit Judges                                    ______________                                 ____________________            J. Michael Any on brief pro se.            ______________            Donald K.  Stern, United  States Attorney,  and Nadine  Pelegrini,            ________________                                _________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                               Per Curiam.  J. Michael Any ("appellant") appeals pro se                 __________                                        ___ __            the denial of his petition  under 28 U.S.C.   2255  to vacate            his conviction, as  well as his motion under Fed.  R. App. P.            10(e) to correct the record.  We affirm.                                        BACKGROUND                 On  March 20  1990,  a federal  indictment was  returned            charging  appellant, Barney  Canada,  and  Gayle Canada  with            operating  an "advance  fee" scheme  in which  they allegedly            defrauded  potential borrowers  by falsely  representing that            they  could  arrange financing  for them  and then,  when the            financing did not occur, refusing to refund the advance fees.            Appellant,  in  particular, was  charged  with  one count  of            conspiracy, see 18 U.S.C.   371, twelve counts of wire fraud,                        ___            see  18 U.S.C.    1343, and one  count of mail  fraud, see 18            ___                                                    ___            U.S.C.    1341.    Some  time thereafter,  appellant  made  a            massive  proffer of documentary  evidence to  the government.            Initial  plea negotiations  apparently failed.   On  July 17,            1990, a  superseding indictment  was  returned which  charged            appellant with an additional count of wire fraud.                 The trial began on March  4, 1991.  In its opening,  the            government outlined  a complex scheme to  defraud which began            in early 1987 when co-defendant Barney Canada set up  various            shell   corporations,  including  a   merchant  bank  on  the            Caribbean island  of Saint  Kitts, and advertised  in various            newspapers that he  could fund or  arrange funding for  large                                         -2-            commercial projects.  Sometime  in late 1987, Canada enlisted            appellant in his plan.   At the time, appellant  was employed            by  ComFed Advisory  Group,  a subsidiary  of ComFed  Savings            Bank.  During  late 1987  and early 1988,  after having  been            terminated by ComFed, appellant held himself out to potential            borrowers as a manager at ComFed and falsely represented that            ComFed  would provide them with  funding.  Appellant also set            up  an  account  at the  Bank  of  Boston  called the  ComFed            Advisory Client Group account.  Prospective  borrowers, whose            advance fees were  placed in this  account, were misled  into            believing that their money  was being held in safe  escrow by            ComFed Savings  Bank.  In  February or March  1988, appellant            took over and operated  through the bank on Saint  Kitts even            though  it  was never  licensed.   During  the course  of the            conspiracy, appellant  and Canada misled  potential borrowers            in many ways.   Among other things, they misrepresented their            background and experience; demanded large advance fees, which            were to be  held in safe escrow but  were, in fact, converted            to  their personal use; and made no valid attempts to arrange            financing for their clients.                   For his  part, defense counsel painted  a very different            picture.   He submitted  that  the evidence  would show  that            appellant was a  "patsy," who was lulled  into believing that            what Canada was doing was legitimate, in part, by appellant's            past dealings with Canada, but also by Canada's employment of                                         -3-                                          3            a  well-appointed Boston  law firm  and his  association with            former  Senator Vance  Hartke  of Indiana.   Defense  counsel            further submitted that appellant  spent a lot of money  and a            lot  of time  actively attempting  to arrange  loan packages,            that  he  had  no  intent to  defraud,  and  that  appellant,            himself, was defrauded by Barney Canada.                 During  five days  of  trial,  the government  submitted            evidence which  strongly showed that appellant  was a knowing            participant  in the scheme  to defraud.  On  the sixth day of            trial,  near the  close of  the government's  case, appellant            expressed his  desire to  plead guilty.   After conducting  a            thorough  colloquy, in accord with  Fed. R. Crim.  P. 11, the            district  court  accepted  the  change of  plea.    Appellant            admitted, under  oath, that  potential borrowers had  got the            "run around."  He  also indicated that he was  satisfied with            trial counsel's  representation and  that his change  of plea            was voluntary.  On  May 23, 1991, appellant was  sentenced to            eighteen   months  imprisonment,  followed  by  a  period  of            supervised release.  There was no direct appeal.                 On  February 23, 1993, appellant filed a pro se petition                                                          ___ __            to  vacate his  conviction under  28 U.S.C.    2255  alleging            ineffective  assistance  of   trial  counsel,   prosecutorial            misconduct, and lack of jurisdiction.  The petition was later            amended  to allege, as a fourth ground for relief, the denial            of appellant's  rights to due process  and compulsory process                                         -4-                                          4            based  on  trial   counsel's  alleged  failure  to   subpoena            "indispensable  witnesses"  and   the  government's   alleged            failure  to extend  immunity to  these witnesses.   With  his            petition,  appellant filed initial and continuing affidavits,            as well as seven  volumes of documentary evidence.   On March            1, 1993,  appellant filed various motions  including a motion            for  the   appointment  of   "assistant"  counsel,   for  the            production of grand  jury minutes documenting attendance  and            voting,   for  the  production   of  trial   transcripts  [at            government expense], and for  an evidentiary hearing and oral            argument for the purpose of introducing "documentary evidence            without  limitation."   These motions  were denied.   In  May            1993,  appellant  filed  a  motion for  summary  judgment,  a            discovery request, and  a motion for expansion  of the record            to  include  all documentary  materials  referred  to in  the            initial and continuing affidavits.  The district court denied            these motions on September  16, 1993.  On September  21, 1993            the  district court  denied the    2255 petition.   Appellant            filed a timely notice of appeal.                 On  March 14,  1994, after  filing his  appellate brief,            appellant  filed a motion in the district court under Fed. R.            App.  P. 10(e) for correction of the transcript of the change            of  plea hearing.    Appellant alleged  that this  transcript            omitted a statement that he had made in open court protesting            his innocence and blaming his attorney for failing to procure                                         -5-                                          5            witnesses.    In  opposition,  the  government  provided  the            district court with  a statement from the court  reporter re-            certifying the accuracy of the transcript based on his review            of  his notes and the  voice recording of  the plea colloquy.            The government also submitted  an affidavit by the prosecutor            on  appeal attesting to the accuracy  of the transcript based            on her own review of the voice recording.  The district court            denied the Rule 10(e) motion without evidentiary hearing, and            appellant  appealed.    We subsequently  granted  appellant's            motion to consolidate the two appeals.                                      DISCUSSION                 As an  initial matter,  we observe  that when  a dispute            concerning the  accuracy of the record has  been submitted to            the district court, "the  court's determination is conclusive            `absent  a  showing  of  intentional falsification  or  plain            unreasonableness.'"  United States v. Serrano, 870 F.2d 1, 12                                 _____________    _______            (1st Cir. 1989) (quoting United States v. Mori, 444 F.2d 240,                                     _____________    ____            246  (5th Cir.), cert. denied,  404 U.S. 913  (1971)).  There                             ____________            has been no such showing here, and appellant fails to advance            any  persuasive reason why an evidentiary hearing on his Rule            10(e)  motion   was  necessary.     Accordingly,   we  reject            appellant's argument that the district court erred in denying            his  Rule 10(e) motion, and  we accept the  transcript of the            change of plea hearing as an accurate record.                                         -6-                                          6                 We turn  next to appellant's allegations  that his trial            counsel rendered  ineffective  assistance.   A defendant  who            pleads guilty  and later  seeks to  set aside  his conviction            based   on  inadequate  counsel  must  demonstrate  that  his            counsel's  performance fell  below an  objective  standard of            reasonableness and  "a reasonable  probability that,  but for            counsel's errors, he  would not have pleaded guilty and would            have insisted on going to trial."  Hill v. Lockhart, 474 U.S.                                               ____    ________            52, 56-59 (1985).   We accept statements made by  the accused            in  a change  of plea  proceeding as  true, unless  he offers            "credible, valid  reasons why a departure  from those earlier            contradictory  statements  is  now  justified."    Hernandez-                                                               __________            Hernandez v. United States, 904 F.2d 758, 762 (1st Cir. 1990)            _________    _____________            (quoting United States  v. Butt,  731 F.2d 75,  80 (1st  Cir.                     _____________     ____            1984)).                   Applying  these  standards,  we  cannot  say   that  the            district  court  erred  in  rejecting  appellant's  claim  of            ineffective assistance based on "distracted" and "unprepared"            counsel.   Appellant's principal complaint is  that his trial            counsel did not have a "working knowledge" of the one hundred            and  twenty-five volumes  of  documentary evidence  appellant            provided him  and failed  to  ensure that  appellant had  the            witnesses he needed in his defense.  However, trial counsel's            performance  before  and  during   the  five  days  of  trial            demonstrates that he was  focused and well-prepared.  Counsel                                         -7-                                          7            filed   many   pre-trial  motions   on   appellant's  behalf,            effectively  cross-examined  the government's  witnesses, and            introduced numerous  documents into evidence.   Counsel  also            submitted a  proposed witness  list  of approximately  thirty            witnesses  and  subpoenaed   three  out-of-state   witnesses,            including Senator Vance Hartke, Jan Hartke, and Bob Schatz.                 Moreover,  appellant fails  to  offer  any valid  reason            which would  explain why  he expressed his  satisfaction with            trial counsel at the plea colloquy when he now claims that he            was  forced  to  plead  guilty  because  of  trial  counsel's            incompetence.     In   particular,  we   reject   appellant's            suggestion that he was misled  when trial counsel advised him            that attorneys Barry Klickstein  and Paul Roberts, members of            the law firm employed by  Barney Canada, would be unavailable            to testify  on appellant's behalf.   Although these attorneys            had  indicated their  intention, if  called as  witnesses, to            exercise  their Fifth  Amendment privilege,  appellant argues            that there  are various ways his attorney could have resolved            the dilemma.  Evaluating trial counsel's practical advice, as            we must, from his perspective at the time, we cannot say that            it fell below  an objective level of  competency.  Klickstein            and  Roberts  appeared  to   be  additional  targets  of  the            government's  investigation,  making  it  unlikely  that  the            government  would seek  formal  immunity for  them.   See  18                                                                  ___            U.S.C.     6003.   In addition,  most  courts have  held that                                         -8-                                          8            judges are powerless  to confer immunity.   United States  v.                                                        _____________            Angiulo, 897  F.2d 1169, 1191 (1st  Cir.) (collecting cases),            _______            cert. denied, 498 U.S. 845 (1990).1              ____________                 Appellant  also  urges   that  his  trial   counsel  was            ineffective because he operated under a conflict of interest.            According to appellant, trial  counsel was a former colleague            of  attorney  Bruce  Singal, who  had  represented  appellant            during  some of  the period  covered by  the indictment.   It            appears  from  the  materials  filed  that   appellant  hired            Attorney  Singal  on  or about  the  time  the  FBI began  to            investigate the  financing scheme.    Appellant also  alleges            that  trial counsel went to  law school with  Jan Hartke, the            son  of  Senator  Vance  Hartke.    Senator  Hartke,  also an            attorney,  had been hired as a special consultant to the bank            on Saint  Kitts.  Appellant  apparently wished  to call  both            Senator Hartke and Attorney Singal in support of a defense of            advice  of counsel,  but  trial counsel  advised against  it.            Appellant  now suggests that trial counsel's advice proceeded            from  his loyalty towards Singal and to the Hartkes, and that            it conflicted with appellant's interests.                                            ____________________            1.  Although  a trial  judge  might refuse  to entertain  the            prosecution  if  it found  that  defense  testimony had  been            thwarted by prosecutorial misconduct, see United States v. De                                                  ___ _____________    __            La Cruz, 996 F.2d 1307, 1313 (1st Cir.), cert. denied, 114 S.            _______                                  ____________            Ct.  356  (1993), there  would have  been,  in this  case, no            apparent basis to urge such a finding.                                           -9-                                          9                 To  demonstrate  an  actual  conflict   of  interest,  a            defendant  must  show  that  a  defense  strategy  or  tactic            inherently in  conflict with his  attorney's other  loyalties            possessed  sufficient substance  to be a  viable alternative.            United  States v. Fahey, 769  F.2d 829, 836  (1st Cir. 1985).            ______________    _____            Based  on  the record,  we do  not  think that  appellant has            sustained  this burden.  There  is no evidence, and appellant            does not allege, that either Hartke or Singal were kept fully            informed  of  all  important   and  material  facts  or  that            appellant acted strictly in  accord with their advice  in his            dealings  with prospective  borrowers.   See  Liss v.  United                                                     ___  ____     ______            States, 915 F.2d 287 (7th  Cir. 1990) (setting forth elements            ______            of  "advice   of  counsel"   defense).    Indeed,   based  on            appellant's affidavits  and exhibits, it appears  that Hartke            and  Singal had limited roles as legal counsel in the instant            matter.  Hartke  allegedly provided some guidance to the bank            on  Saint Kitts during its "early affairs."  Singal was hired            after  most of the acts charged in the indictment had already            taken  place.2  Since an advice of counsel defense built upon                                            ____________________            2.  In one of the exhibits filed below, appellant states that            he  employed Attorney  Singal between  June and  August 1988.            Most  of the acts  charged in the  indictment occurred during            1987 and the first half of 1988.                                         -10-                                          10            their  testimony was not a viable alternative, we do not find            an actual conflict of interest.3                 We need  not linger  long on appellant's  allegations of            prosecutorial  misconduct.   Appellant contends,  inter alia,                                                              _____ ____            that the prosecution employed  perjured testimony before  the            grand  jury, failed  to present  exculpatory evidence  to the            second  grand jury,  engaged  in  selective prosecution,  and            failed  to  grant  immunity  to witnesses  essential  to  his            defense.   We  express  no opinion  on  the merits  of  these            claims.    A knowing  and  voluntary guilty  plea  waives all            nonjurisdictional defects.  United  States v. Broce, 488 U.S.                                        ______________    _____            563, 569 (1989); Valencia v. United States, 923 F.2d 917, 920                             ________    _____________            (1st Cir.  1991).   Since  appellant has  made no  persuasive            argument that actions by  the prosecution rendered his guilty            plea   involuntary,  his   claims   based  on   prosecutorial            misconduct are foreclosed.                    Finally,  we  turn  to  appellant's  argument  that  the            district   court  should  have  granted  him  an  evidentiary            hearing.   Under Rule 4 of the Rules Governing Proceedings in            the U.S. District Courts under   2255, the district court was            entitled to  dismiss the  petition if  it appeared  "from the            face of the  motion and  any annexed exhibits  and the  prior                                            ____________________            3.  We add  that  trial counsel's  advice against  proceeding            with  Senator  Hartke as  a witness  appears  to have  been a            strategic  decision.   Hartke  had  indicated  that he  would            "bury" appellant if called to testify.                                         -11-                                          11            proceedings  in the case that  the movant is  not entitled to            relief . . . "  We have clarified that when, as in this case,            a   2255 petition is presented to the judge who presided over            the trial, "the judge  is at liberty to employ  the knowledge            gleaned during previous proceedings and make findings thereon            without convening  an additional hearing."   United States v.                                                         _____________            McGill, 11 F.3d 223, 225 (1st Cir. 1993).              ______                 In the instant case, the  familiarity of the judge  with            the  case obviated the need  for an evidentiary  hearing.  In            particular,  we reject  appellant's  suggestion that  he  was            entitled to an evidentiary hearing so that he could introduce            documentary  material "without  limitation."    Based  on his            affidavits,  appellant  had   assembled  this  material   and            presented it to  trial counsel  prior to the  change of  plea            hearing in which he indicated his satisfaction with counsel's            representation.   Since  the district  court was  entitled to            accept his statements at  the Rule 11 proceeding as  true, it            could  properly  reject his  claim  of inadequate  assistance            without further inquiry into  the contents of these materials            or counsel's alleged failure  to master them. We add  that to            the  extent  these  documentary materials  were  relevant  to            appellant's   claims   of   prosecutorial    misconduct,   no                                         -12-                                          12            evidentiary  hearing  was necessary  since  these  claims are            waived.4                 Having found  that the district  court properly rejected            the instant  petition based  upon  the papers  filed and  the            prior proceedings, we need  not discuss in detail appellant's            claim  that he was entitled to summary judgment in his favor.            We observe, however,  that any failure  by the government  to            adequately  respond to  appellant's filings  does not,  as he            suggests, automatically entitle him to relief.  Cf. Jaroma v.                                                            ___ ______            Massey, 873 F.2d  17, 20  (1st Cir. 1989)  (stating that  the            ______            district  court cannot  grant a  motion for  summary judgment            merely  for lack of any response  by the opposing party).  In            so  observing,   we  express   no  opinion  on   whether  the            government's response was adequate or inadequate.                    We  have  carefully  considered   appellant's  remaining            arguments and reject them as without merit.                   Affirmed.                  ________                                            ____________________            4.  For  the  same  reasons,   we  think  that  the  district            appropriately denied appellant's request to expand the record            to include these documents.                                         -13-                                          13
