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USCA1 Opinion
April 6, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1843
H. RAYMOND KELLETT, JR.,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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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
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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H. Raymond Kellett, Jr. on brief pro se.
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A. John Pappalardo, 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, Department of Justice, on brief for appellee.
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Per Curiam. H. Raymond Kellett, Jr., has appealed
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the district court's dismissal of his habeas petition on res
judicata grounds. On appeal, the government agrees with
Kellett that the district court erred in dismissing the
petition. It concurs that the doctrine of res judicata does
not apply in habeas or postconviction proceedings. See,
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e.g., Sanders v. United States, 373 U.S. 1, 8, 14-15 (1963).
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The parties also explain convincingly that the court had not
resolved Kellett's earlier petition under 28 U.S.C. 2255 on
the merits. The government argues, however, that remand is
not necessary because Kellett's petition is meritless as a
matter of law. After reviewing the petition and the record
on appeal, we agree and therefore affirm.1
In his habeas petition, Kellett claimed that the
prosecutor had concealed material exculpatory evidence from
him, i.e., that senior bank officers and directors had known
that false loan applications were being submitted to the bank
for approval. On appeal, he argues that he would not have
pled guilty to the charge of making false statements to a
federally insured bank in violation of 18 U.S.C. 1014 if he
had known of this evidence. Kellett's argument appears to be
that this evidence was exculpatory because a necessary
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1. We hereby grant the government's motion to withdraw its
original appendix and to substitute an appendix excluding
Kellett's presentence report. In determining this appeal, we
have considered only the contents of the replacement
appendix.
element of the crime to which he pled guilty was that the
bank have relied on the false statements when it approved the
loans. That is, Kellett says that no crime under section
1014 would have been committed if the bank was not actually
deceived when it approved loans on the basis of false loan
documents. Abundant case law to the contrary undermines
Kellett's claim. See, e.g., United States v. Norberg, 612
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F.2d 1, 4-5 (1st Cir. 1979) (the focus of the statute is that
a false statement was made for the purpose of influencing the
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bank to take certain action; the cases make clear that a
bank's reliance on the false statement is irrelevant); see
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also United States v. Johnson, 585 F.2d 119, 125 (5th Cir.
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1978) (The statute applies "not only [to] a defendant who
intends to defraud an unwitting insured institution but also
[to] a defendant who intends to cooperate with the
institution in a scheme requiring him, with the institution's
knowledge, to make false statements for the furtherance of
the scheme. The [institution's] awareness of the fraud is
not relevant, for its existence is not inconsistent with the
intent to influence which a violator of 1014 must
possess.").
We note further that, under section 1014, the
critical knowledge is that possessed by the person making or
causing the false statement to be made. See United States v.
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Concemi, 957 F.2d 942, 951 (1st Cir. 1992) (among other
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things, the government must show that the defendant "acted
knowingly" in making or causing a false statement be made to
a federally insured bank). Although Kellett suggests on
appeal that the bank actually prepared the false documents,
by pleading guilty he admitted that he had made or caused
false statements to be made and that he knew the statements
were false. It is too late for Kellett to deny the factual
basis of the charge to which he pled guilty. See United
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States v. Morrison, 938 F.2d 168, 171 (10th Cir. 1991) (in
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sentencing challenge, defendant could not assert facts
contrary to those to which he pled guilty). This is
especially true since the "fact" in question is what Kellett
himself knew about the accuracy of the statements in the loan
documents. Kellett must have known at the time he pled
guilty whether or not he knew that the loan documents
contained falsehoods which would influence the bank to
approve the loans, and the state of knowledge of bank
officers or directors had no bearing on that question.
Therefore, any failure by the prosecutor to tell Kellett what
those officers or directors knew would provide no basis for
permitting Kellett to withdraw his guilty plea.
Kellett suggests that the court might have imposed
a more lenient sentence than it did if it had been aware that
senior bank officers or directors had known that false loan
applications were being submitted to the bank for approval.
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He claims that the court did not sentence him with full and
accurate information and that his sentencing therefore
violated his due process rights.2 The sentencing transcript
shows that the court believed that higher level bank officers
must have known that false loan applications were being
submitted to the bank. Thus, Kellett's suggestion that the
court was unaware of this fact is simply incorrect.
Moreover, the sentencing transcript indicates that both the
probation department and the court took this and other
factors into account by reducing by one level the base
offense level assigned to the loss amount in Kellett's case
by the Sentencing Guidelines. See U.S.S.G. 2F1.1(b)(1).
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Accordingly, we do not think that the prosecutor's alleged
failure to disclose evidence that senior bank officers or
directors knew of the ongoing scheme renders Kellett's
sentencing constitutionally deficient.
Kellett further claims that newly discovered
evidence substantiates his claim of selective prosecution.
As the government points out, this court has held that
selective prosecution claims are deemed waived if not raised
prior to trial. See Tracey v. United States, 739 F.2d 679,
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682 (1st Cir. 1984), cert. denied, 469 U.S. 1109 (1985).
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Prior to his trial, Kellett sought assurances from the
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2. We assume for argument's sake, but without deciding, that
this claim survives dismissal on mootness grounds.
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prosecutor that his prosecution was not politically
motivated, evidencing his awareness that he might have a
selective prosecution claim. But he did not challenge his
prosecution on that basis by way of the requisite motion. On
appeal, Kellett says that the prosecutor assured him that his
prosecution was not politically motivated. The newly
discovered evidence he refers to, however, has nothing to do
with those assurances, but at most supports the proposition
that certain mall developers, whom he had opposed prior to
his prosecution, sought to ensure the success of their
project by making political contributions. Accordingly, we
find the selective prosecution claim to be waived.
We find Kellett's remaining arguments to be without
merit for the reasons stated in the government's brief.
Affirmed.
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Document Info
Docket Number： 93-1843
Filed Date： 4/6/1994
Precedential Status： Precedential
Modified Date： 3/3/2016