U.S. v. Rantz

• Citation: 862 F.2d 808
• Decision Date: 06 December 1988
• Docket Number: No. 87-1988,87-1988
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobby Gene RANTZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 808

862 F.2d 808

UNITED STATES of America, Plaintiff-Appellee, v. Bobby Gene RANTZ, Defendant-Appellant.

No. 87-1988.

United States Court of Appeals, Tenth Circuit.

Dec. 6, 1988.

Michael M. Jackson, Topeka, Kan., for defendant-appellant.

Benjamin L. Burgess, Jr., U.S. Atty., Wichita, Kan., D. Kan., Kurt J. Shernuk, Asst. U.S. Atty., Topeka, Kan., D. Kan., for plaintiff-appellee.

Before LOGAN and TACHA, Circuit Judges, and ANDERSON, Senior District Judge. ¹

ALDON J. ANDERSON, Senior District Judge.

This appeal is from the denial of a motion to vacate sentence pursuant to 28 U.S.C. Sec. 2255. The sentence resulted from petitioner's conviction of conspiracy to defraud the government by filing fraudulent income tax returns. He challenges the denial on the grounds that he was denied effective assistance of counsel and that the trial court erred with respect to various aspects of the trial and use of the presentence report.

FACTUAL BACKGROUND

While in prison on other charges, the petitioner, Bobby Gene Rantz, along with three other defendants, was charged with conspiracy to defraud the government by supplying names and social security numbers of individuals for use on fraudulent tax returns. Twenty false returns were discovered amounting to over $316,000.00 in refunds. After the government's case was presented, which consisted largely of tape-recorded conversations made by Mr. Rantz from prison telephones, he proffered no evidence in his behalf to rebut the criminal charges. The jury found three of the defendants, including petitioner, guilty as charged.

Mr. Rantz now moves to vacate his sentence on a number of grounds. His first claim is that he was denied effective assistance of counsel. He contends that his trial attorney rendered ineffective assistance by (1) not permitting him to testify; and (2) making the trial a "sham" by not providing a defense because of a purported agreement that the petitioner would be released from prison two to six weeks after the trial (due to his testimony against a cell-mate in an unrelated case) regardless of the verdict. Pursuant to 28 U.S.C. Sec. 2255, the trial court conducted an evidentiary hearing and permitted petitioner to bring forth evidence regarding the alleged ineffective assistance. After the trial court found that he was not denied effective assistance of counsel, he argued that the evidentiary hearing was conducted improperly since the trial court did not issue subpoenas he had requested for additional witnesses.

Petitioner's next claim is that the trial court erred in requiring him to testify, if he desired to do so, before other defense testimony was heard by the court. He argues that this requirement denied him due process and violated his right against self-incrimination.

His last two claims involve the presentence report and the sentencing itself. Petitioner contends that the trial court (1) denied him an opportunity to read the presentence report; and (2) did not resolve objections to the report prior to the imposition of the sentence.

In rebuttal, the government first claims that petitioner was not denied effective assistance of counsel. The government argues that defense counsel did not permit Mr. Rantz to testify because he believed his testimony would be false and fraudulent.

Thus, in order to avoid assisting in the commission of perjury, defense counsel did not permit petitioner to testify.

As to the assertion that defense counsel presented no evidence at trial because the trial was a "sham," the government contends that there was no support for petitioner's wild theories of an early release or his acting as a government informant. The government shows that Mr. Rantz's own witnesses had no knowledge of any purported agreement between the petitioner and the government for an early release. Since petitioner's attorney saw that the evidence was overwhelming against his client and there was no factual foundation for his anticipated testimony or defense, his decision not to present evidence and to pursue negotiations with other law enforcement agencies was reasonable.

As to the alleged improprieties in the evidentiary hearing, the government contends that the trial court did not issue subpoenas to additional witnesses because their testimony was cumulative to that already provided.

As to the claim that the trial court erred in requiring the petitioner to testify before other defense testimony, the government argues that this is precluded from review because it is raised for the first time on appeal. Alternatively, the government contends that any error was harmless and petitioner was not prejudiced by the court's requirement to testify first since neither he nor any of his witnesses testified at trial.

With respect to the presentence report, the government contends that the fact petitioner advised the court of certain inaccuracies contained within the report indicates that he had in fact read it and was familiar with its contents. Finally, the government argues that the only disputed part of the presentence report concerns petitioner's version of the criminal offense. The government contends that this is not a factual dispute as contemplated by Rule 32(c)(3)(D). Moreover, even if this were a proper factual dispute, petitioner did not appropriately present it as such so that the court could resolve it before sentencing.

1. Ineffective Assistance of Counsel.

Petitioner first claims that his sentence should be vacated because he was denied effective assistance of counsel. He claims that Mr. Hecht, his trial attorney, did not adequately represent him because he was denied the opportunity to testify in his own behalf and present his defense. The trial court conducted an evidentiary hearing, heard petitioner's claims, and concluded that he was not denied effective assistance of counsel. In conjunction with this finding, petitioner claims that the trial court procedurally erred by not issuing subpoenas for certain witnesses he had desired to put on the stand.

On appeal from an evidentiary hearing conducted pursuant to a motion to vacate sentence, the trial court's factual findings should not be disturbed unless clearly erroneous. Crail v. United States, 430 F.2d 459, 460 (10th Cir.1970). In order to find that counsel rendered ineffective assistance, it must be shown that counsel did not exercise "the skill, judgment and diligence of a reasonably competent defense attorney." United States v. Afflerbach, 754 F.2d 866, 870 (10th Cir.) cert. den. 472 U.S. 1029, 105 S.Ct. 3506, 87 L.Ed.2d 636 (1985). There is a strong presumption that counsel provided effective assistance of counsel and petitioner has the burden of proof to overcome that presumption. United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 (1984).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) the Supreme Court set forth the two elements that must be established to show whether counsel's assistance was so defective as to require the reversal of a conviction. First, it must be shown that counsel committed serious errors so as to not be functioning as the "counsel" provided by the Sixth Amendment. Id. at 687, 104 S.Ct. at 2064. To determine whether counsel's performance comported with the Sixth Amendment, the inquiry is whether the attorney's conduct is reasonable in light of all the circumstances of the case. Id. This is an objective standard based on whether the reasonable defense attorney would act in Second, it must be shown that counsel's performance was prejudicial to the defense. Id. at 687, 104 S.Ct. at 2064. "[T]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.

the same manner as the defense counsel in the situation being analyzed. Id. at 688, 104 S.Ct. at 2065.

Petitioner's claim fails on both of these elements. First, it appears that defense counsel's conduct was reasonable given the overwhelming amount of evidence against the petitioner. Since the constitutional right of an accused to testify does not require counsel to allow his client to falsely testify, Nix v. Whiteside, 475 U.S. 157, 171, 106 S.Ct. 988, 997, 89 L.Ed.2d 123 (1985), Mr. Hecht was not obligated to put the petitioner on the witness stand or proceed with a fabricated defense that had no factual basis if he knew that the testimony and defenses were false. Mr. Hecht testified that since the government's case was so powerful, the petitioner's testimony would not be believable, and that their best strategy would be to continue negotiations with law enforcement officials regarding petitioner's testimony in another case. As noted above, Mr. Hecht also testified that it would have been perjury, in his judgment, for the petitioner to testify that he was not involved in the transactions with criminal intent when the evidence was overwhelming that he was the initiator of the conspiracy. Indeed, the trial court found that there was overwhelming evidence presented at the evidentiary hearing showing that petitioner's testimony and defenses were completely false.

Second, there is no evidence that counsel's performance was prejudicial to the petitioner. Because of the amount of evidence against the petitioner, this court cannot conclude that there is a reasonable probability that the result of the case would have been different had counsel permitted petitioner to testify or proceed on the fabricated defenses. On the contrary, it is unlikely that any available evidence that could have been presented would have rebutted the evidence against the petitioner.

Since there is ample support in the record for the trial court's factual findings and ruling, we must conclude that the trial court was justified in its holding and was not clearly erroneous.

Petitioner also claims that the trial court committed error in...