USCA1 Opinion
July 31, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1920
UNITED STATES,
Appellee,
v.
H. RAYMOND KELLETT, JR.,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Boudin and Stahl, Circuit Judges.
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H. Raymond Kellett, Jr. on brief pro se.
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Donald K. Stern, United States Attorney, Deborah M. Smith,
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Director, New England Bank Fraud Task Force, and Donald C. Lockhart,
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Trial Attorney, New England Bank Fraud Task Force, Fraud Section,
Criminal Division, U.S. Department of Justice, on brief for appellee.
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Per Curiam. H. Raymond Kellett appeals from the
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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.
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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,
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50 F.3d 1448, 1453 (9th Cir. 1995) (a defendant challenging
the voluntariness of a guilty plea may assert a Brady claim);
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United States v. Wright, 43 F.3d 491, 496 (10th Cir. 1994)
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(under limited circumstances, a Brady violation can render a
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defendant's plea involuntary); White v. United States, 858
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F.2d 416, 422 (8th Cir. 1988) (Supreme Court precedent did
not foreclose a Brady challenge to a guilty plea), cert.
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denied, 489 U.S. 1029 (1989); Campbell v. Marshall, 769 F.2d
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314, 321 (6th Cir. 1985) (similar), cert. denied, 475 U.S.
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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
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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.
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1048 (1986); but see Smith v. United States, 876 F.2d 655,
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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
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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
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F.3d at 1454; accord Wright, 43 F.3d at 496 (evidence is
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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
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challenge to defendant's Alford plea because the withheld
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evidence would not have been "controlling" in defendant's
decision to plead guilty); Campbell, 769 F.2d at 324 (same).
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The test of materiality is an objective one. Sanchez, 50
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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
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influence the bank's action upon a loan application. See 18
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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
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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.
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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
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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.
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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,
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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.
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Wilcox, 919 F.2d 109, 112 (9th Cir. 1990) (affirming the
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exclusion of evidence that bank officers had told defendant
that he could make the false statements in question); United
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States v. Bush, 599 F.2d 72, 75 (5th Cir. 1979) (affirming
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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,
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585 F.2d 119, 123-25 (5th Cir. 1978) (affirming the exclusion
of evidence about bank officers' complicity; the bank's
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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.
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United States, No. 93-1843, at 2-4 (1st Cir. Apr. 6, 1994).
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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.
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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
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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
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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
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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
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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
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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.
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denied, 115 S. Ct. 1720 (1995). If so, his premise would
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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.
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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
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(imposing liability on those who "knowingly" make false
statements to a federally insured bank); United States v.
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Grissom, 44 F.3d 1507, 1510 (10th Cir.), cert. denied, 115 S.
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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
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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.
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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
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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.
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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.
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Ocasio-Rivera, 991 F.2d 1, 3 (1st Cir. 1993). Kellett
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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
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Cir. 1990); United States v. De La Fuente, 548 F.2d 528, 541
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(5th Cir.), cert. denied, 431 U.S. 932 (1977).
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Because Kellett's claim that his guilty plea should
be overturned was meritless, no hearing was required.
Affirmed.
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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.
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