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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[NOT FOR PUBLICATION]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
____________________
Per Curiam.
__________
under 28 U.S.C.
2255
to vacate
R. App. P.
We affirm.
BACKGROUND
On
March 20
charging
1990,
a federal
appellant, Barney
Canada,
operating
an "advance
defrauded
potential borrowers
they
could
indictment was
fee" scheme
and
Gayle Canada
in which
by falsely
arrange financing
for them
returned
with
they allegedly
representing that
and then,
when the
in
particular, was
18 U.S.C.
U.S.C.
charged
Some
one count
of
1341.
with
count of mail
time thereafter,
massive
proffer of documentary
Initial
plea negotiations
1990, a
superseding indictment
fraud, see 18
___
appellant
evidence to
the government.
apparently failed.
was
made
On
July 17,
returned which
charged
4, 1991.
a complex scheme to
In its opening,
the
various
shell
on
corporations,
Caribbean island
newspapers that he
including
of Saint
merchant
bank
could fund or
-2-
the
in various
large
commercial projects.
Sometime
ComFed Advisory
Bank.
During
Group,
late 1987
a subsidiary
was employed
of ComFed
Savings
after having
been
up
account
an
at the
Bank
funding.
of
ComFed Savings
Bank.
it
was never
conspiracy, appellant
in many ways.
In
Boston
called the
Prospective
placed in this
borrowers, whose
During
into
escrow by
1988, appellant
ComFed
Kitts even
the course
of the
potential borrowers
a very different
picture.
He submitted
appellant was a
that
the evidence
would show
that
-33
well-appointed Boston
former
Senator Vance
law firm
Hartke
of Indiana.
of time
that
he
actively attempting
had
no
intent to
and his
association with
Defense
counsel
defraud,
and
and a
loan packages,
that
appellant,
five days
evidence which
participant
trial,
thorough
trial,
the government
in the scheme
near the
expressed his
of
close of
desire to
to defraud.
On
the government's
plead guilty.
submitted
was a knowing
After conducting
Fed. R. Crim.
P. 11, the
district
court
accepted
admitted, under
"run around."
oath, that
He
trial counsel's
was voluntary.
eighteen
to
change of
plea.
representation and
On
months
Appellant
supervised release.
On
the
satisfied with
followed
got the
of plea
sentenced to
by
period
of
vacate his
ineffective
conviction under
assistance
of
28 U.S.C.
trial
counsel,
2255
alleging
prosecutorial
of appellant's
-44
based
on
trial
"indispensable
failure
counsel's
witnesses"
to extend
alleged
and
immunity to
the
failure
to
government's
these witnesses.
subpoena
alleged
With
his
petition,
as well as seven
1, 1993,
for
the
appointment
production of grand
voting,
for
the
of
On March
including a motion
"assistant"
for
the
and
production
of
counsel,
trial
transcripts
[at
limitation."
appellant
These motions
filed
include
motion for
all documentary
summary
the
were denied.
judgment,
May
a
of the record
referred
to in
the
16, 1993.
denied the
In
On September
2255 petition.
21, 1993
Appellant
March 14,
1994, after
filing his
appellate brief,
Appellant alleged
that this
transcript
-55
witnesses.
In
opposition,
the
government
provided
the
reporter re-
voice recording of
appealed.
We subsequently
granted
appellant's
initial matter,
concerning the
that when
we observe
showing
unreasonableness.'"
of
a dispute
been submitted to
or
plain
(1st Cir. 1989) (quoting United States v. Mori, 444 F.2d 240,
_____________
____
246
(1971)).
There
10(e)
motion
was
necessary.
Accordingly,
we
reject
we accept the
transcript of the
-66
We turn
counsel rendered
pleads guilty
based
on
counsel's
ineffective
and later
inadequate
seeks to
counsel
performance fell
reasonableness and
assistance.
below an
"a reasonable
counsel's errors, he
in
a change
his conviction
demonstrate
objective
that
his
standard of
probability that,
but for
of plea
"credible, valid
who
A defendant
set aside
must
proceeding as
true, unless
the accused
he offers
contradictory
statements
is
now
justified."
Hernandez__________
Hernandez v. United States, 904 F.2d 758, 762 (1st Cir. 1990)
_________
_____________
(quoting United States
_____________
v. Butt,
____
80 (1st
Cir.
1984)).
Applying
district
these
court
standards,
erred
in
we
cannot
rejecting
say
appellant's
that
the
claim
of
twenty-five volumes
provided him
and failed
of
documentary evidence
to
ensure that
before
and
during
appellant
appellant had
the
five
days
of
trial
Counsel
-77
filed
many
pre-trial
motions
on
appellant's
behalf,
effectively
cross-examined
introduced numerous
submitted a
witnesses
the government's
proposed witness
and
witnesses, and
subpoenaed
list
three
Counsel
of approximately
out-of-state
also
thirty
witnesses,
appellant fails
explain why
to
offer
any valid
he expressed his
reason
satisfaction with
forced
to
plead
incompetence.
In
guilty
because
particular,
to testify
had
their Fifth
that there
reject
counsel's
appellant's
on appellant's behalf.
indicated their
exercise
we
trial
of
intention, if
Amendment privilege,
witnesses, to
appellant argues
the dilemma.
Roberts
government's
government
U.S.C.
an objective level of
appeared
to
be
investigation,
would seek
6003.
additional
making
formal
In addition,
-88
competency.
it
most
targets
unlikely
immunity for
Klickstein
them.
courts have
of
the
that
the
See
___
18
held that
to confer immunity.
United States
_____________
v.
also
urges
that
his
trial
counsel
was
attorney
Bruce
during
some of
appears
from
Attorney
Singal
investigate the
that
son
Singal, who
the period
the
on
Senator
attorney,
on Saint
had
filed
or about
the
financing scheme.
Vance
represented
covered by
materials
the indictment.
that
time
appellant
the
Senator
It
hired
FBI began
Appellant also
Hartke.
appellant
to
alleges
also an
Appellant
apparently wished
to call
both
of counsel,
Appellant
but
trial counsel
advised against
it.
from
____________________
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.
-99
To
demonstrate
defendant
must
inherently in
possessed
an
show
actual
that
on
sustained
defense
sufficient substance
conflict
the record,
this burden.
we do
There
of
interest,
strategy
attorney's other
to be a
tactic
loyalties
viable alternative.
or
think that
appellant has
does not allege, that either Hartke or Singal were kept fully
informed
of
all
important
with prospective
"advice
of
counsel"
appellant's affidavits
and
material
facts
or
See
___
Liss v.
____
that
in his
United
______
Indeed,
based
on
that Hartke
matter.
on
and
Hartke
after
taken
place.2
____________________
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.
-1010
their
not linger
prosecutorial
long on appellant's
misconduct.
Appellant contends,
jury, failed
second
grand jury,
failed
to
grant
engaged
immunity
We
express
claims.
A knowing
exculpatory evidence
in
to witnesses
on
essential
the merits
voluntary guilty
nonjurisdictional defects.
plea
the
to the
selective prosecution,
no opinion
and
inter alia,
_____ ____
to present
defense.
allegations of
to
of
and
his
these
waives all
563, 569 (1989); Valencia v. United States, 923 F.2d 917, 920
________
_____________
(1st Cir.
1991).
Since
appellant has
involuntary,
made no
persuasive
his
claims
based
on
prosecutorial
we
turn
should
to
appellant's
have
hearing.
dismiss the
face of the
motion and
an
the
court
entitled to
him
that
district
granted
argument
evidentiary
petition if
it appeared
"from the
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.
-1111
proceedings
relief . . . "
a
the movant is
not entitled to
is at liberty to employ
the knowledge
an additional hearing."
United States v.
_____________
particular,
we reject
appellant's
with
hearing.
suggestion that
he
In
was
material "without
affidavits,
appellant
had
limitation."
assembled
this
Based
material
on his
and
presented it to
trial counsel
prior to the
change of
plea
Since
the district
properly
court was
entitled to
reject his
claim
of inadequate
true, it
assistance
the
extent
appellant's
these
documentary materials
claims
of
were
prosecutorial
that to
relevant
misconduct,
to
no
-1212
evidentiary
hearing
was necessary
since
these
claims are
waived.4
Having found
the instant
petition based
upon
the papers
filed and
the
We observe, however,
adequately
respond to
by the government
appellant's filings
does not,
17, 20
court cannot
motion for
observing,
we
express
no
as he
Cf. Jaroma v.
___ ______
(stating that
the
summary judgment
to
on
whether
In
the
have
carefully
considered
appellant's
remaining
____________________
4. For the same reasons,
we think that the district
appropriately denied appellant's request to expand the record
to include these documents.
-1313