Boschen v. U.S., 87-3344

• Decision Date: 20 May 1988
• Docket Number: No. 87-3344,87-3344
• Citation: 845 F.2d 921
• Parties: Arthur L. BOSCHEN, New World Construction, Inc., Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 921

845 F.2d 921

Arthur L. BOSCHEN, New World Construction, Inc. Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.

No. 87-3344

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

May 20, 1988.

Arthur L. Boschen, pro se.

Thomas F. Egan, Asst. Federal Public Defender, Orlando, Fla., for petitioners-appellants.

Robert W. Merkle, U.S. Attorney's Office, Orlando, Fla., Sara Criscitelli, U.S. Dept. of Justice, Ann Arbor, Washington, D.C., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before HILL, VANCE and CLARK, Circuit Judges.

PER CURIAM:

Appellant, Arthur Boschen, was convicted of conspiracy to defraud the United States and filing false statements with the United States in violation of 18 U.S.C. Secs. 371, 1001. He was sentenced to three years in prison. Appellant's conviction was upheld on direct appeal. United States v. White, 765 F.2d 1469 (11th Cir.1985). He then filed the present motion to vacate his sentence under 28 U.S.C. Sec. 2255, alleging a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), government interference with the defense's access to witnesses, and ineffective assistance of counsel. The district court denied the motion without a hearing. We affirm.

Appellant first claims that the government committed a Brady violation by failing to turn over exculpatory documents. The documents appellant points to are memoranda by National Aeronautics and Space Administration (NASA) officials regarding the relationship between appellant's firm and the general contractor on the NASA projects. In order to establish a Brady violation, a defendant must show that there is a reasonable probability that the outcome of the proceedings would have been different if the evidence had been disclosed. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). As this court found on direct appeal, there was overwhelming evidence that Boschen and his co-defendants submitted inflated proposals to the government. Thus, it is highly unlikely that evidence regarding NASA's knowledge of the specific nature of the contractor-subcontractor relationship would have affected the outcome of the trial. Appellant's allegations are insufficient to establish a Brady violation.

The second claim raised by appellant is that the prosecution interfered with the defense's access to potential witnesses. Although this issue was raised in the district court prior to trial, appellant did not raise this issue on direct appeal. In order to obtain relief under section 2255 based upon this error, appellant must demonstrate both good cause for the failure to raise the claim earlier and actual prejudice resulting from the error. United States v. Frady, 456 U.S. 152, 166-67, 102 S.Ct. 1584, 1593-94, 71 L.Ed.2d 816 (1982). Appellant has not demonstrated any reason for his failure to raise this claim on direct appeal. He is, therefore, precluded from raising the claim in this collateral proceeding.

Appellant's final claim is that he was denied effective assistance of counsel. In order to establish such a claim, a defendant must show that his counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that the outcome would have been different but for counsel's errors. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first shortcoming of counsel which ap...