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[NOT FOR PUBLICATION]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 Pelegri
________________
_______________
Assistant United States Attorney, on brief for appellee.
____________________

____________________

Per Curiam.
__________

J. Michael Any ("appellant") appeals pro se

___ __

the denial of his petition

his conviction, as

under 28 U.S.C.

2255

well as his motion under Fed.

to vacate
R. App. P.

10(e) to correct the record.

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

financing did not occur, refusing to refund the advance fees.

Appellant,

in

particular, was

conspiracy, see 18 U.S.C.

___
see
___

18 U.S.C.

U.S.C.

charged

Some

one count

of

371, twelve counts of wire fraud,

1343, and one

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

appellant with an additional count of wire fraud.

The trial began on March
government outlined

4, 1991.

a complex scheme to

In its opening,

the

defraud which began

in early 1987 when co-defendant Barney Canada set up

various

shell

on

corporations,

Caribbean island
newspapers that he

including

of Saint

merchant

bank

Kitts, and advertised

could fund or

-2-

the

in various

arrange funding for

large

commercial projects.

Sometime

appellant in his plan.

by

ComFed Advisory

Bank.

During

in late 1987, Canada enlisted

At the time, appellant

Group,

late 1987

a subsidiary

was employed

of ComFed

and early 1988,

Savings

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

up

account

an

at the

Bank

funding.
of

Advisory Client Group account.

advance fees were

ComFed Savings

Bank.

took over and operated

though

it

was never

conspiracy, appellant
in many ways.

In

Boston

called the

Prospective

placed in this

believing that their money

Appellant also set

borrowers, whose

account, were misled

was being held in safe

February or March

During

and Canada misled

into

escrow by

1988, appellant

through the bank on Saint

licensed.

ComFed

Kitts even

the course

of the

potential borrowers

Among other things, they misrepresented their

background and experience; demanded large advance fees, which

were to be
to

held in safe escrow but

were, in fact, converted

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

appellant was a

that

the evidence

"patsy," who was lulled

would show

that

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

-33

well-appointed Boston

former

Senator Vance

law firm

Hartke

of Indiana.

further submitted that appellant

lot

of time

that

he

actively attempting

had

no

intent to

and his

association with
Defense

counsel

spent a lot of money

to arrange

defraud,

and

and a

loan packages,
that

appellant,

himself, was defrauded by Barney Canada.

During

five days

evidence which
participant
trial,

thorough

trial,

the government

strongly showed that appellant

in the scheme

near the

expressed his

of

close of

desire to

to defraud.

On

the government's
plead guilty.

colloquy, in accord with

submitted

was a knowing

the sixth day of

case, appellant

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

potential borrowers had

also indicated that he was

supervised release.
On

the

satisfied with

that his change

May 23, 1991, appellant was

imprisonment,

followed

got the

of plea

sentenced to

by

period

of

There was no direct appeal.

February 23, 1993, appellant filed a pro se petition

___ __

vacate his

ineffective

conviction under

assistance

of

28 U.S.C.

trial

misconduct, and lack of jurisdiction.

amended

counsel,

2255

alleging

prosecutorial

The petition was later

to allege, as a fourth ground for relief, the denial

of appellant's

rights to due process

and compulsory process

-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,

appellant filed initial and continuing affidavits,

as well as seven
1, 1993,
for

volumes of documentary evidence.

appellant filed various motions

the

appointment

production of grand
voting,

for

the

of

On March

including a motion

"assistant"

for

the

jury minutes documenting attendance

and

production

government expense], and for

of

counsel,

trial

transcripts

[at

an evidentiary hearing and oral

argument for the purpose of introducing "documentary evidence

without
1993,

limitation."
appellant

These motions

filed

discovery request, and

to

include

motion for

all documentary

these motions on September

district court

summary

a motion for expansion

materials

initial and continuing affidavits.

the

were denied.

judgment,

May
a

of the record

referred

to in

the

The district court denied

16, 1993.

denied the

In

On September

2255 petition.

21, 1993
Appellant

filed a timely notice of appeal.

On
appellant
App.
of

March 14,

1994, after

filing his

appellate brief,

filed a motion in the district court under Fed. R.

P. 10(e) for correction of the transcript of the change

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

-55

witnesses.

In

opposition,

district court with

the

government

provided

a statement from the court

the

reporter re-

certifying the accuracy of the transcript based on his review

of

his notes and the

voice recording of

The government also submitted

on

the plea colloquy.

an affidavit by the prosecutor

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,

concerning the

that when

accuracy of the record has

the district court, "the

`absent

we observe

showing

unreasonableness.'"

of

a dispute

been submitted to

court's determination is conclusive

intentional falsification

or

plain

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.

-66

We turn

next to appellant's allegations

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

Hill v. Lockhart, 474 U.S.

____
________

We accept statements made by

of plea

"credible, valid

who

would not have pleaded guilty and would

have insisted on going to trial."

52, 56-59 (1985).

A defendant

set aside

must

that his trial

proceeding as

true, unless

reasons why a departure

the accused
he offers

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
district

these

court

standards,

erred

in

we

cannot

rejecting

say

appellant's

that

the

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

provided him

and failed

of

documentary evidence

to

ensure that

witnesses he needed in his defense.

performance

before

and

demonstrates that he was

during

appellant

appellant had

the

However, trial counsel's

the

five

days

focused and well-prepared.

of

trial
Counsel

-77

filed

many

pre-trial

motions

on

appellant's

behalf,

effectively

cross-examined

introduced numerous
submitted a
witnesses

the government's

documents into evidence.

proposed witness
and

witnesses, and

subpoenaed

list
three

Counsel

of approximately
out-of-state

also
thirty

witnesses,

including Senator Vance Hartke, Jan Hartke, and Bob Schatz.

Moreover,
which would

appellant fails

explain why

to

offer

any valid

he expressed his

reason

satisfaction with

trial counsel at the plea colloquy when he now claims that he

was

forced

to

plead

incompetence.

In

guilty

because

particular,

suggestion that he was misled

to testify
had

their Fifth

that there

reject

counsel's
appellant's

and Paul Roberts, members of

Barney Canada, would be unavailable

on appellant's behalf.

indicated their

exercise

we

trial

when trial counsel advised him

that attorneys Barry Klickstein

the law firm employed by

of

intention, if

Although these attorneys

called as

Amendment privilege,

witnesses, to

appellant argues

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
and

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

judges are powerless

Angiulo, 897
_______

to confer immunity.

F.2d 1169, 1191 (1st

United States
_____________

v.

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
of

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

trial counsel went to

of

counsel was a former colleague

the indictment.

that
time

appellant
the

Senator

It
hired

FBI began

Appellant also

law school with

Hartke.

appellant

to

alleges

Jan Hartke, the

Hartke,

also an

had been hired as a special consultant to the bank

Kitts.

Appellant

apparently wished

to call

both

Senator Hartke and Attorney Singal in support of a defense of

advice

of counsel,

Appellant

but

trial counsel

advised against

it.

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.
-99

To

demonstrate

defendant

must

inherently in
possessed

an

show

actual

that

on

sustained

defense

conflict with his

sufficient substance

United States v. Fahey, 769

______________
_____
Based

conflict

the record,
this burden.

we do
There

of

interest,

strategy

attorney's other
to be a

tactic

loyalties

viable alternative.

F.2d 829, 836

not

or

(1st Cir. 1985).

think that

appellant has

is no evidence, and appellant

does not allege, that either Hartke or Singal were kept fully
informed

of

all

important

appellant acted strictly in

dealings

with prospective

States, 915 F.2d 287 (7th

______
of

"advice

of

counsel"

appellant's affidavits
and

material

facts

or

accord with their advice

borrowers.

See
___

Liss v.
____

that
in his
United
______

Cir. 1990) (setting forth elements

defense).

Indeed,

and exhibits, it appears

based

on

that Hartke

Singal had limited roles as legal counsel in the instant

matter.
on

and

Hartke

allegedly provided some guidance to the bank

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.
-1010

their

testimony was not a viable alternative, we do not find

an actual conflict of interest.3

We need

not linger

prosecutorial

long on appellant's

misconduct.

Appellant contends,

that the prosecution employed

grand

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,
_____ ____

perjured testimony before

to present

defense.

allegations of

to
of

and
his
these

waives all

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

argument that actions by

plea

involuntary,

made no

persuasive

the prosecution rendered his guilty

his

claims

based

on

prosecutorial

misconduct are foreclosed.

Finally,

we

turn
should

to

appellant's

have

hearing.

Under Rule 4 of the Rules Governing Proceedings in

dismiss the

face of the

motion and

an

the

court

entitled to

him

that

district

the U.S. District Courts under

granted

argument

evidentiary

2255, the district court was

petition if

it appeared

any annexed exhibits

"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

in the case that

relief . . . "
a

the movant is

not entitled to

We have clarified that when, as in this case,

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
the

case obviated the need

particular,

we reject

familiarity of the judge

for an evidentiary

appellant's

with

hearing.

suggestion that

he

In
was

entitled to an evidentiary hearing so that he could introduce

documentary

material "without

affidavits,

appellant

had

limitation."
assembled

this

Based
material

on his
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

accept his statements at

could

properly

court was

entitled to

the Rule 11 proceeding as

reject his

claim

of inadequate

true, it
assistance

without further inquiry into

the contents of these materials

or counsel's alleged failure

to master them. We add

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

that the district

petition based

upon

court properly rejected

the papers

filed and

the

prior proceedings, we need

claim

not discuss in detail appellant's

that he was entitled to summary judgment in his favor.

We observe, however,
adequately

that any failure

respond to

by the government

appellant's filings

does not,

suggests, automatically entitle him to relief.

Massey, 873 F.2d
______
district
merely
so

17, 20

court cannot

(1st Cir. 1989)

grant a

motion for

for lack of any response

observing,

we

express

no

as he

Cf. Jaroma v.
___ ______

(stating that

the

summary judgment

by the opposing party).

opinion

to

on

whether

In
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.
-1313