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[NOT FOR PUBLICATION]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

Director, New England Bank

States

Attorney,

Deborah M. Smi
________________

Fraud Task Force, and Donald

C. Lockha

_________________
Trial Attorney,

New

Criminal Division,

England Bank

Fraud Task

Force, Fraud

Secti

U.S. Department of Justice, on brief for appell

____________________

____________________

Per Curiam.
__________

summary denial of his

for reconsideration.

H. Raymond Kellett

appeals from

motion for a new trial

We affirm.

the

and his motion

Kellett

insured

for

in

1014 and

a hung jury.

returned.

statements

to ComFed

Thereafter,

federally

In 1990, he was indicted

in violation

a superceding

Kellett then pled guilty to

justice.

is

attorney for

for obstructing justice.

false statement to the

and

closing

bank, ComFed Savings Bank.

making false

U.S.C.

was a

His

of 18

trial ended

indictment was

one count of making a

bank and to one count

of obstructing

He was sentenced, served his term of imprisonment,

now serving

bringing

two petitions

brought the

motions to

of

supervised release.

for post-conviction

motion now before

district court denied

subsequent

a term

us.

amend and

relief, Kellett

In a margin

the motion; it

After

order, the

also summarily

to reconsider

denied

the court's

decision.

Kellett's

plea.

evidence which

possession, but had

withheld evidence

have pled

the prosecution

his guilty

had had

failed to produce during

allegedly would likely

not

to invalidate

According to the motion, Kellett had recently obtained

exculpatory

the

motion sought

guilty.

had

been

discovery.

produced, Kellett's

have ended in acquittal

In support

of his

in its

If

trial

and he would

motion, Kellett

submitted his own affidavit and affidavits and a statement by

his

trial

attorney.

Kellett asked

for

a hearing

on his

claims

and

new trial.

For

reasons

which follow,

we

affirm.2

Because

Kellett

reindictment, we construe

motion

for post-conviction

See United States

___ _____________

1990) (per

bring a

was

his motion

after

104 (9th

pleads guilty may

trial under Fed. R.

his

trial as

28 U.S.C.

898 F.2d 103,

defendant who

motion for a new

tried

for a new

relief under

v. Collins,
_______

curiam) (a

never

2255.

Cir.

not

Crim. P. 33).

For argument's sake, we assume that Kellett may challenge his

guilty

plea

on the

ground that

disclose exculpatory evidence.

50 F.3d 1448,

the prosecution

failed to

See Sanchez v. United States,

___ _______
_____________

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

(under limited circumstances, a

defendant's

F.2d

not foreclose

Brady violation can render a

_____

plea involuntary); White

_____

416, 422 (8th

challenge to

denied, 489 U.S. 1029 (1989); Campbell

______
________

314,

321 (6th Cir.

v. United States, 858

______________

Cir. 1988) (Supreme

a Brady
_____

(10th Cir. 1994)

Court precedent did

guilty plea),

cert.
_____

v. Marshall, 769 F.2d

________

1985) (similar), cert.

denied, 475 U.S.

_____________

____________________

2.

Because this appeal is so clearly meritless and rendering

a decision on the
below,

merits would not alter the

we agree with the

jurisdictional questions it

government that we
raises in

FDIC v. Bay Street Development Corp., 32

____
_____________________________

n.4

(1st Cir. 1994).

of our

brief.

F.3d 636, 639

disposition, we also

decline to consider other issues raised by the

its thorough brief, e.g.,

may bypass the

its appellate

See
___

In view

result reached

government in

whether Kellett's motion should be

denied as an abuse of the writ.

-3-

1048

(1986); but see Smith

___ ___ _____

657

(8th Cir.) (in

v. United States,
_____________

pleading guilty, a

nonjurisdictional challenges to

claim

based

on

the

defendant waives all

the prosecution, including a

prosecution's

failure

favorable evidence), cert. denied, 493

____________

relevant question, then, is

was

in

withholding

to

U.S. 869 (1989).

plead

a challenge

to a

of exculpatory

and

would

guilty

evidence is

have

prosecution's withholding

The

The test of materiality

plea based

gone

to

on the

whether there

"reasonable probability" that a defendant would have

to

disclose

whether the withheld information

material to Kellett's defense.

evaluating

876 F.2d 655,

trial

of the evidence.

but

is a

refused

for

the

See Sanchez, 50
___ _______

F.3d

at 1454;

accord Wright,
______ ______

material only if

43 F.3d

there is a reasonable

at 496

(evidence is

probability that its

disclosure would have altered the result of the proceeding in

question); compare
_______

challenge

White, 858
_____

to defendant's

evidence would

not have

F.2d at 424

Alford
______

been

plea because

materiality is

the withheld

"controlling" in

decision to plead guilty); Campbell, 769

________

The test of

(rejecting Brady
_____

defendant's

F.2d at 324 (same).

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

U.S.C.

he had

the bank's action upon a loan application.

1014.

The government's charge against him was that

knowingly signed loan

that there

See 18
___

documents falsely representing

was no secondary financing on

the property being

mortgaged.

by

The withheld

Frank Buco,

evidence consisted, first, of notes

a co-defendant

and former

ComFed Executive

Vice-President who pled guilty

to making false statements to

ComFed

and who

the prosecution

trial;

and,

testified for

second,

conversations between

director of

name in

of

transcript

James Baldini, a

of

at Kellett's

two

telephone

former President and

ComFed, and

a person identified

the transcript.

The Buco notes are

only by

first

far from self-

explanatory, consisting in large part of incomplete sentences

and

phrases,

unexplained

bank jargon,

unidentified persons and events.

and

references

to

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

Kellett, abused, Addullah, Ambiehl.

DOC

Program stopped

3/89

scheme.

Ray

Kick Backs, etc. NO

reluctantly by

Zoeller.

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"

Kellett

loan program.4

claims, that

information

that

The

bank

loan

notes

directors had

applications

mortgages were being submitted to

had

been

involved

in

involving

spoke with

hidden second

willfully ignored

with

hidden

second

the

program.

The

Baldini transcript involved loan

transactions involving "bogus

person he

suggest, as

the bank, and that Baldini

establishing

discussions recorded in the

the

may also

buyers."

referred to

mortgages.

Neither Baldini

Kellett or

At one

nor

to loans

point, Baldini

expressed his dislike

set up by

of fraud, adding vaguely that

he "got

a Board of Directors at Comfed to take a fall that

the US Attorney has cleared

support

Kellett's

Baldini,

Zoeller

claim

and

me of."

that

His statement

the

ComFed's

transcript

directors

does not

shows

knew

about

that

and

participated in the No Doc loan program.

Thus,

the withheld evidence

even hints at Kellett's

innocence.

assume that it clearly

contains nothing that

For argument's sake,

showed that senior bank

we

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

whereby it would approve loan

documents

verifying

implemented

loan

program

applications without obtaining

borrower's

assets.

It

is

our

understanding
verification
documents

that

it

was

the failure

to

that permitted

Kellett and

others to

falsely representing

that

require

there were

no

asset
prepare
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

matter

of

exonerate Kellett.

law,

however,

that

evidence

would

not

The case law is clear that the complicity

of

a bank or of bank officers is

1014 prosecution.5

945 F.2d

court's

See, e.g., United States v. Blumenthal,

_________ ______________
__________

280, 282-83

refusal

not a defense in a section

to

(9th Cir.

give

jury

1991) (affirming the

instructions

officers' collusion with the defendant; the

not

advance

Wilcox,
______

a "legally

919 F.2d

exclusion of

sound"

109, 112

(9th

theory);

the

United States
_____________

the

v. Bush, 599 F.2d

____

lower court's

defendant's

72, 75 (5th

refusal

false statements

had told defendant

United
______

Cir. 1979) (affirming

to instruct

could

v.

(affirming the

that he could make the false statements in question);

States
______

bank

instructions did

Cir. 1990)

evidence that bank officers

on

lower

the

not have

jury that

been made

the

to

influence

the bank

because

statements were false;

duplicity with

a bank

the bank's

president knew

1014 does not "immunize a

officer"); United States

_____________

the

party in

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

denied

government correctly
Kellett's

notes that we

contention

that

exculpates him under section 1014.

United States, No. 93-1843,
_____________
In that
not in

appeal, the Buco

the record,

the

have previously

bank's

See H. Raymond Kellett v.

___ __________________

at 2-4 (1st Cir. Apr.

notes and Baldini

although Kellett's reply

case referred to them.

-7-

complicity

6, 1994).

transcript were
brief in

that

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.

defendant's

435, 448

(D.

intent to

Mass. 1991)

influence

statements, not on whether

thus,

"it

was

of no

official knew th[e]

1014 focuses

on a

the bank

by making

false

the bank was actually influenced;

consequence

whether

or

statements were false when

not a

bank

submitted"),

aff'd, 994 F.2d 918 (1st Cir. 1993).6

_____

Viewed

evidence

was

objectively,

therefore,

the

withheld

would not have supported a viable defense and so it

not material (except for

the very limited

use it might

have been for impeachment purposes).

See Sanchez, 50 F.3d at

___ _______

1454

not

(the

defendant's

withheld

evidence

was

decision

to plead

guilty

defenses it allegedly

material

because

to

the

one of

the

supported was not viable and the other

____________________

6.

Kellett's argument concerning

be based on

the premise

the bank's complicity

that any false

statements he

may
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
to a bank
denied,
______

for the
115 S.

seem wrong as a
would not

false

made false statements

purpose of influencing

Ct. 1720 (1995).

existence

the loan

representations,

the bank

loans.

-8-

cert.
_____

his premise would

The bank apparently

applications if

of secondary

was willing to close on

the bank),

If so,

matter of common sense.

have approved

disclosed the
Kellett

that the defendant has

financing.

they had
Because

documents he knew contained

was

able

to approve

the

would "almost

avers

certainly fail"

that he

evidence had

would not

at trial).

have pled

been produced, he

legal basis for

Although Kellett

guilty if

the withheld

would have had

no objective

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

false statements.

section 1014,

made

false

(imposing

statements

In

to him by

order to

the prosecution

obtain

to a

those

who

federally insured

See
___

contained

a conviction

must show that

statements knowingly.
_________

liability on

the bank

18

under

the defendant

U.S.C.

"knowingly"

make

1014

false

bank); United States v.

______________

Grissom, 44 F.3d 1507, 1510 (10th Cir.), cert. denied, 115 S.

_______
____________

Ct.

1720 (1995).

plead

guilty

In

to

his plea agreement,

making

false

violation

of section 1014.7

confirmed

that

he

circumstances of

that

statements

At

his plea

informed

the charge

his attorney

charges

had

Kellett agreed to

his

to

him of

and his possible defenses.

in

hearing, Kellett

attorney

against him; he

had advised

ComFed

the

also confirmed

the nature

He then

of

of those

pled guilty to

____________________

7.

The page in

which describes
guilty,

is

explicitly

the superceding
Count 25,

missing.
charged

The
Kellett

indictment against

the count
original

Kellett pled

indictment,

with "knowingly"

statements to ComFed; presumably, the

did as well.

to which

Kellett

however,

making

false

superceding indictment

-9-

violating section 1014 after

doing so would waive his

did not

object to the

against him.8

did not know

the plea.

the court had advised

him that

right to be presumed innocent.

government's description of

Moreover,

its case

Kellett's attorney stated

of any reason why

the court should

The court accepted Kellett's plea

He

that he

not accept

as "voluntarily

and

knowledgeably offered."

there

was

an

Kellett's plea

trial

on the

The

independent

because of

first

Kellett

cannot claim

guilty,

and cannot

along.

It

basis

what he

indictment.

now that

now

he

court further

of

had

for

accepting

heard at

Kellett's

Under the

circumstances,

did not

knowingly plead

protest that

is inconceivable

fact

found that

he

was innocent

that Kellett's

all

attorney would

have recommended a guilty plea, or that Kellett, an attorney,

would have pled

guilty, if

Kellett had not

known that

loan documents he signed contained false statements.

____________________

the

We have

8.

The prosecutor stated that she had been prepared to prove

the following
scheme to

at trial: that

conceal

Kellett had participated

second mortgages

from

the

in a

underwriting

department at the bank; that, in connection with one specific

loan

application,

prepared a

Kellett

had

prepared or

HUD-1 settlement statement, a

caused

be

HUD-1 certificate,

and a Fannie Mae affidavit, all of which falsely

that no

to

represented

second mortgage on the property in question existed;

that Kellett had signed those documents, thereby vouching for

their veracity; that the
basis

of those

bank had granted a mortgage

documents;

that the

on 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

of Fed.

R. Crim. P.

11(e).

him in chambers in violation

We do not

since it was not squarely raised below.

Ocasio-Rivera, 991
_____________

F.2d

suggests as well that the

Because

1,

3 (1st

claim

See United States v.

___ _____________

Cir.

1993).

court should have recused

Kellett

itself.

he failed to file a motion below seeking the court's

disqualification or recusal, that

appeal.

address that

See
___

claim is not before

us on

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.

true that

his presentence

investigation report

It is

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

because of Kellett's

equivocal acceptance of responsibility;

it maintained that Kellett was

"trying to . . . walk

line so as to preserve his bar membership."

response to

level

questioning by the court,

a thin

In any event, in

Kellett unequivocally

agreed

that he accepted responsibility for the two counts of

the indictment to which he had pled guilty.

-11-