
USCA1 Opinion

	




          July 31, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1920                                    UNITED STATES,                                      Appellee,                                          v.                               H. RAYMOND KELLETT, JR.,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                        FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            H. Raymond Kellett, Jr. on brief pro se.            _______________________            Donald  K.  Stern,  United  States  Attorney,  Deborah  M.  Smith,            _________________                              __________________        Director, New England Bank  Fraud Task Force, and Donald  C. Lockhart,                                                          ___________________        Trial Attorney,  New  England Bank  Fraud Task  Force, Fraud  Section,        Criminal Division,  U.S. Department of Justice, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.   H. Raymond Kellett  appeals from  the                      __________            summary denial of his  motion for a new trial  and his motion            for reconsideration.  We affirm.                      Kellett  was a  closing  attorney for  a  federally            insured  bank, ComFed Savings Bank.  In 1990, he was indicted            for  making false  statements  to ComFed  in violation  of 18            U.S.C.   1014 and  for obstructing justice.  His  trial ended            in  a hung jury.   Thereafter,  a superceding  indictment was            returned.  Kellett then pled guilty to  one count of making a            false statement to the  bank and to one count  of obstructing            justice.   He was sentenced, served his term of imprisonment,            and  is  now serving  a term  of  supervised release.   After            bringing  two petitions  for post-conviction  relief, Kellett            brought the  motion now before  us.   In a margin  order, the            district court denied  the motion; it  also summarily  denied            subsequent  motions to  amend and  to reconsider  the court's            decision.                       Kellett's  motion sought  to invalidate  his guilty            plea.  According to the motion, Kellett had recently obtained            exculpatory  evidence which  the prosecution  had had  in its            possession, but had  failed to produce during  discovery.  If            the  withheld evidence  had  been  produced, Kellett's  trial            allegedly would likely  have ended in acquittal  and he would            not  have pled  guilty.   In support  of his  motion, Kellett            submitted his own affidavit and affidavits and a statement by            his  trial  attorney.   Kellett asked  for  a hearing  on his            claims  and  a  new trial.    For  reasons  which follow,  we            affirm.2                        Because   Kellett  was   never   tried  after   his            reindictment, we construe  his motion  for a new  trial as  a            motion  for post-conviction  relief under  28 U.S.C.    2255.            See United States  v. Collins,  898 F.2d 103,  104 (9th  Cir.            ___ _____________     _______            1990) (per  curiam) (a  defendant who  pleads guilty may  not            bring a  motion for a new  trial under Fed. R.  Crim. P. 33).            For argument's sake, we assume that Kellett may challenge his            guilty  plea  on the  ground that  the prosecution  failed to            disclose exculpatory evidence.  See Sanchez v. United States,                                            ___ _______    _____________            50 F.3d 1448,  1453 (9th Cir. 1995)  (a defendant challenging            the voluntariness of a guilty plea may assert a Brady claim);                                                            _____            United  States v. Wright, 43  F.3d 491, 496  (10th Cir. 1994)            ______________    ______            (under limited circumstances, a  Brady violation can render a                                             _____            defendant's  plea involuntary); White  v. United  States, 858                                            _____     ______________            F.2d  416, 422 (8th  Cir. 1988) (Supreme  Court precedent did            not foreclose  a Brady  challenge to  a  guilty plea),  cert.                             _____                                  _____            denied, 489 U.S. 1029 (1989); Campbell  v. Marshall, 769 F.2d            ______                        ________     ________            314,  321 (6th Cir.  1985) (similar), cert.  denied, 475 U.S.                                                  _____________                                            ____________________            2.  Because this appeal is so clearly meritless and rendering            a decision on the  merits would not alter the  result reached            below,  we agree with the  government that we  may bypass the            jurisdictional questions it  raises in  its appellate  brief.            See  FDIC v. Bay Street  Development Corp., 32  F.3d 636, 639            ___  ____    _____________________________            n.4  (1st Cir. 1994).   In view  of our  disposition, we also            decline to consider other issues raised by the  government in            its thorough brief, e.g.,  whether Kellett's motion should be            denied as an abuse of the writ.                                         -3-            1048  (1986); but see Smith  v. United States,  876 F.2d 655,                          ___ ___ _____     _____________            657  (8th Cir.) (in  pleading guilty, a  defendant waives all            nonjurisdictional challenges to  the prosecution, including a            claim  based  on   the  prosecution's  failure   to  disclose            favorable evidence), cert. denied, 493  U.S. 869 (1989).  The                                 ____________            relevant question, then, is  whether the withheld information            was  material to Kellett's defense.   The test of materiality            in  evaluating  a challenge  to a  guilty  plea based  on the            withholding  of exculpatory  evidence is  whether there  is a            "reasonable probability" that a defendant would have  refused            to  plead  and  would   have  gone  to  trial  but   for  the            prosecution's withholding  of the evidence.   See Sanchez, 50                                                          ___ _______            F.3d  at 1454;  accord Wright,  43 F.3d  at 496  (evidence is                            ______ ______            material only if  there is a reasonable  probability that its            disclosure would have altered the result of the proceeding in            question); compare  White, 858  F.2d at 424  (rejecting Brady                       _______  _____                               _____            challenge  to defendant's  Alford  plea because  the withheld                                       ______            evidence would  not have  been  "controlling" in  defendant's            decision to plead guilty); Campbell, 769  F.2d at 324 (same).                                       ________            The test of  materiality is  an objective one.   Sanchez,  50                                                             _______            F.3d at 1454.                        Viewed objectively, there  is no question that  the            withheld evidence was not material to Kellett's determination            to plead  guilty.  Here,  Kellett essentially pled  guilty to            knowingly  making a  false statement  to ComFed  in  order to                                         -4-            influence  the bank's action upon a loan application.  See 18                                                                   ___            U.S.C.    1014.  The government's charge against him was that            he had  knowingly signed loan  documents falsely representing            that there  was no secondary financing on  the property being            mortgaged.  The withheld  evidence consisted, first, of notes            by  Frank Buco,  a co-defendant  and former  ComFed Executive            Vice-President who pled guilty  to making false statements to            ComFed  and who  testified for  the prosecution  at Kellett's            trial;  and,  second,  of   a  transcript  of  two  telephone            conversations between  James Baldini, a  former President and            director of  ComFed, and  a person identified  only by  first            name in  the transcript.   The Buco notes are  far from self-            explanatory, consisting in large part of incomplete sentences            and  phrases,  unexplained  bank jargon,  and  references  to            unidentified persons and events.   Without further background            explanation, we cannot see the precise significance of Buco's            notes.  They  refer to Kellett  once, but  the import of  the            reference  is unclear.3    They suggest,  as Kellett  argues,            that Jack Zoeller, a ComFed director and President, knew that            second  mortgages were  being concealed.    If so,  the notes            indicate that Buco had information which could have impeached                                            ____________________            3.  The paragraph containing the reference to Kellett reads:                 Accusations are made  by Fred Maloof about  scheme.  Ray                 Kellett, abused, Addullah, Ambiehl.  Kick Backs, etc. NO                 DOC  Program stopped  3/89  reluctantly by  Zoeller.   I                 urged him many times to kill program, not loan officers.                 He did it his way.                                         -5-            Zoeller at trial, who allegedly denied any involvement in the            "No  Doc"  loan program.4   The  notes  may also  suggest, as            Kellett  claims, that  bank  directors had  willfully ignored            information  that  loan   applications  with  hidden   second            mortgages were being submitted to  the bank, and that Baldini            had  been   involved  in  establishing  the   program.    The            discussions recorded in the  Baldini transcript involved loan            transactions involving "bogus  buyers."  Neither Baldini  nor            the  person he  spoke with  referred to  Kellett or  to loans            involving  hidden second  mortgages.   At one  point, Baldini            expressed his dislike  of fraud, adding vaguely that  he "got            set up by  a Board of Directors at Comfed to take a fall that            the US Attorney has cleared  me of."  His statement  does not            support  Kellett's  claim  that  the  transcript  shows  that            Baldini,  Zoeller  and  ComFed's  directors  knew  about  and            participated in the No Doc loan program.                       Thus,  the withheld evidence  contains nothing that            even hints at Kellett's  innocence.  For argument's sake,  we            assume that it clearly  showed that senior bank  officers and            directors, including Baldini and Zoeller, had approved the No            Doc  loan program  and  that they  continued  to promote  the                                            ____________________            4.  Apparently, the  bank  had  implemented  a  loan  program            whereby it would approve loan  applications without obtaining            documents  verifying   a  borrower's  assets.     It  is  our            understanding  that  it  was  the failure  to  require  asset            verification  that permitted  Kellett and  others to  prepare            documents  falsely representing  that  there were  no  second            mortgages on the properties in question.                                          -6-            program   after   becoming  aware   that   loan  applications            concealing second mortgages were being submitted to the bank.            As  a  matter  of  law,  however,  that  evidence  would  not            exonerate Kellett.  The case law is clear that the complicity            of  a bank or of bank officers is  not a defense in a section            1014 prosecution.5   See, e.g., United  States v. Blumenthal,                                 _________  ______________    __________            945 F.2d  280, 282-83  (9th Cir.  1991) (affirming the  lower            court's  refusal  to  give  jury  instructions  on  the  bank            officers' collusion with the defendant; the  instructions did            not  advance  a "legally  sound"  theory);  United States  v.                                                        _____________            Wilcox,  919 F.2d  109, 112  (9th  Cir. 1990)  (affirming the            ______            exclusion of  evidence that bank officers  had told defendant            that he could make the false statements in question);  United                                                                   ______            States  v. Bush, 599 F.2d  72, 75 (5th  Cir. 1979) (affirming            ______     ____            the  lower court's  refusal  to instruct  the  jury that  the            defendant's  false statements  could  not have  been made  to            influence  the bank  because  the bank's  president knew  the            statements were false;    1014 does not "immunize a  party in            duplicity with  a bank  officer"); United States  v. Johnson,                                               _____________     _______            585 F.2d 119, 123-25 (5th Cir. 1978) (affirming the exclusion            of  evidence  about  bank officers'  complicity;  the  bank's                                            ____________________            5.  The  government correctly  notes that we  have previously            denied  Kellett's  contention   that  the  bank's  complicity            exculpates him under section 1014.  See H. Raymond Kellett v.                                                ___ __________________            United States, No. 93-1843,  at 2-4 (1st Cir. Apr.  6, 1994).            _____________            In that  appeal, the Buco  notes and Baldini  transcript were            not in  the record,  although Kellett's reply  brief in  that            case referred to them.                                         -7-            awareness of the fraud is not relevant since its existence is            not   inconsistent  with   the  defendant's   possessing  the            requisite intent to influence); United States v. Brennan, 832                                            _____________    _______            F.  Supp.  435, 448  (D.  Mass. 1991)  (   1014 focuses  on a            defendant's  intent to  influence  the bank  by making  false            statements, not on whether  the bank was actually influenced;            thus,  "it  was  of no  consequence  whether  or  not a  bank            official knew th[e]  statements were false when  submitted"),            aff'd, 994 F.2d 918 (1st Cir. 1993).6            _____                      Viewed   objectively,   therefore,   the   withheld            evidence  would not have supported a viable defense and so it            was  not material (except for  the very limited  use it might            have been for impeachment purposes).  See Sanchez, 50 F.3d at                                                  ___ _______            1454  (the   withheld  evidence  was  not   material  to  the            defendant's  decision  to plead  guilty  because  one of  the            defenses it allegedly  supported was not viable and the other                                            ____________________            6.  Kellett's argument concerning  the bank's complicity  may            be based on  the premise  that any false  statements he  made            could not have been intended to influence the bank to approve            the  loans since  the bank  itself had  initiated the  No Doc            program and continued it knowing that false loan applications            were being submitted.   See United States v. Grissom,  44 F3d                                    ___ _____________    _______            1507, 1510 (10th Cir.) (a requisite element of a section 1014            prosecution is  that the defendant has  made false statements            to a bank  for the  purpose of influencing  the bank),  cert.                                                                    _____            denied,  115 S.  Ct. 1720 (1995).   If so,  his premise would            ______            seem wrong as a  matter of common sense.  The bank apparently            would not  have approved  the loan  applications if  they had            disclosed the  existence  of secondary  financing.    Because            Kellett  was willing to close on  documents he knew contained            false  representations,  the bank  was  able  to approve  the            loans.                                         -8-            would "almost  certainly fail"  at trial).   Although Kellett            avers  that he  would not  have pled  guilty if  the withheld            evidence had  been produced, he  would have had  no objective            legal basis for  that decision, and  so we have no  basis for            overturning his guilty plea.                          We  also  reject  Kellett's argument  that  he  has            steadfastly maintained his innocence and that he did not know            that the loan  documents sent  to him by  the bank  contained            false statements.   In  order to  obtain  a conviction  under            section 1014,  the prosecution  must show that  the defendant            made  false  statements knowingly.    See  18  U.S.C.    1014                                    _________     ___            (imposing  liability on  those  who  "knowingly"  make  false            statements  to a  federally insured  bank); United  States v.                                                        ______________            Grissom, 44 F.3d 1507, 1510 (10th Cir.), cert. denied, 115 S.            _______                                  ____________            Ct.  1720 (1995).  In  his plea agreement,  Kellett agreed to            plead  guilty  to  making   false  statements  to  ComFed  in            violation  of section 1014.7   At  his plea  hearing, Kellett            confirmed  that   he  had   informed  his  attorney   of  the            circumstances of  the charge  against him; he  also confirmed            that  his attorney  had advised  him of  the nature  of those            charges  and his possible defenses.   He then  pled guilty to                                            ____________________            7.  The page in  the superceding  indictment against  Kellett            which describes  Count 25,  the count  to which  Kellett pled            guilty,  is  missing.    The  original  indictment,  however,            explicitly  charged  Kellett  with "knowingly"  making  false            statements to ComFed; presumably, the  superceding indictment            did as well.                                         -9-            violating section 1014 after  the court had advised  him that            doing so would waive his  right to be presumed innocent.   He            did not  object to the  government's description of  its case            against him.8   Moreover,  Kellett's attorney stated  that he            did not know  of any reason why  the court should  not accept            the plea.  The court accepted Kellett's plea  as "voluntarily            and  knowledgeably offered."   The  court further  found that            there  was  an  independent   basis  of  fact  for  accepting            Kellett's plea  because of  what he  had  heard at  Kellett's            trial  on the  first  indictment.   Under the  circumstances,            Kellett  cannot claim  now that  he  did not  knowingly plead            guilty,  and cannot  now  protest that  he  was innocent  all            along.   It  is inconceivable  that Kellett's  attorney would            have recommended a guilty plea, or that Kellett, an attorney,            would have pled  guilty, if  Kellett had not  known that  the            loan documents he signed contained false statements.  We have                                            ____________________            8.  The prosecutor stated that she had been prepared to prove            the following  at trial: that  Kellett had participated  in a            scheme to  conceal  second mortgages  from  the  underwriting            department at the bank; that, in connection with one specific            loan  application,  Kellett  had  prepared or  caused  to  be            prepared a  HUD-1 settlement statement, a  HUD-1 certificate,            and a Fannie Mae affidavit, all of which falsely  represented            that no  second mortgage on the property in question existed;            that Kellett had signed those documents, thereby vouching for            their veracity; that the  bank had granted a mortgage  on the            basis  of those  documents;  that the  mortgage violated  the            bank's underwriting guidelines and the mortgagor subsequently            defaulted; and that ComFed was a federally insured bank.                                            -10-            no basis for  relieving Kellett  of the  consequences of  his            informed and voluntary decision to plead guilty.9                      On appeal, Kellett also argues that the trial court            initiated plea discussions with  him in chambers in violation            of Fed.  R. Crim. P.  11(e).   We do not  address that  claim            since it was not squarely raised below.  See United States v.                                                     ___ _____________            Ocasio-Rivera, 991  F.2d  1,  3 (1st  Cir.  1993).    Kellett            _____________            suggests as well that the  court should have recused  itself.            Because  he failed to file a motion below seeking the court's            disqualification or recusal, that  claim is not before  us on            appeal.  See  United States v. Towns, 913 F.2d  434, 443 (7th                     ___  _____________    _____            Cir. 1990); United States v. De La Fuente, 548  F.2d 528, 541                        _____________    ____________            (5th Cir.), cert. denied, 431 U.S. 932 (1977).                        ____________                      Because Kellett's claim that his guilty plea should            be overturned was meritless, no hearing was required.                        Affirmed.                      _________                                            ____________________            9.  In  view  of  his  plea hearing  and  sentencing  hearing            transcripts, we discount entirely Kellett's claim that he had            only  accepted responsibility on behalf of his office.  It is            true that  his presentence  investigation report  records his            comment that he accepted responsibility for his subordinates'            conduct.   At sentencing,  the government asked  the court to            deny Kellett a two-level reduction in his base offense  level            because of Kellett's  equivocal acceptance of responsibility;            it maintained that Kellett was  "trying to . . . walk  a thin            line so as to preserve his bar membership."  In any event, in            response to  questioning by the court,  Kellett unequivocally            agreed  that he accepted responsibility for the two counts of            the indictment to which he had pled guilty.                                         -11-
