Nguyen v. U.S.

• Decision Date: 19 May 1997
• Docket Number: No. 96-1960,96-1960
• Citation: 114 F.3d 699
• Parties: Vietchau NGUYEN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 699

114 F.3d 699

Vietchau NGUYEN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 96-1960.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 19, 1996.

Decided May 19, 1997.

Ann M. Kraemer, argued, Minneapolis, MN (Bruce Peterson, Minneapolis, MN, Cheryl J. Sturm, West Chester, PA, on the brief), for plaintiff-appellant.

Jeanne J. Graham, argued, Minneapolis, MN (David L. Lillehaug, U.S. Attorney, on the brief), for defendant-appellee.

Before BEAM, FRIEDMAN ¹, and LOKEN, Circuit Judges.

FRIEDMAN, Circuit Judge.

The United States District Court for the District of Minnesota ² denied the appellant Nguyen's motion to vacate his conviction and sentence following his guilty plea. Nguyen contended that his plea was involuntary. The district court denied the motion without an evidentiary hearing. We affirm.

I.

A. Nguyen, born and raised in Vietnam, came to the United States where he earned bachelor's and master's degrees in civil engineering at the University of Minnesota and a Doctorate in engineering at Princeton University. He became president of an environmental consulting firm called Earth, Water and Air, Incorporated ("the Company"), of which a close friend became vice president. The Company served various governmental entities and others.

One of its clients was the Yakima Indian Nation ("Yakima"), to which the United States Department of Energy had made a grant to study the effects of locating a nuclear waste disposal facility on Yakima land. As Nguyen acknowledges in his brief, Yakima hired the Company to advise it on the environmental effects of thus locating the facility. Although Yakima hired the Company, the government (specifically, the Department of Energy) provided grants to the Yakima to pay for the Company's consulting services.

On September 21, 1990 Nguyen, the Company's vice president and the Company were indicted in the United States District Court for the District of Minnesota in 25 counts charging wire and mail fraud, false statements to the government, transportation of stolen goods, and conspiracy to defraud the United States. A number of the counts charged the defendants with submitting false vouchers to the Yakima that substantially overstated the amounts due the Company because the vouchers were based upon an overstatement of the number of hours Company employees had worked for the Yakima.

Nguyen, represented by counsel, entered into a written plea agreement in which he agreed to plead guilty to one count of the indictment (count IX) charging mail fraud and to a one count information charging conspiracy to defraud the United States, and the government agreed to dismiss the remaining counts of the indictment against him. The plea agreement also stated that nothing therein "will prevent the recovery or attempted recovery of restitution or penalties through appropriate civil proceedings." The conduct charged in count IX occurred before the effective date of the United States Sentencing Guidelines.

After an extensive hearing on November 30, 1990, the district court ³held that the plea was "a completely free and voluntary and knowing one" and accepted it. At the hearing, at which Nguyen's counsel was present, the prosecutor read the plea agreement, and Nguyen stated that that was the agreement he had entered and those were the terms to which he had agreed.

In sworn testimony and by yes or no answers in response to questions by the court, Nguyen stated: (1) that he "had plenty of opportunity to discuss these charges with [his] attorney, to discuss with him [his] possible defenses at trial, to discuss [his] other rights, and to discuss the idea of pleading guilty"; (2) that he was "satisfied with the representation that [he had] received from [his] attorney" and that he "believe[d]" his counsel has "been a good lawyer, as far as [he is] concerned"; (3) that no "force" or "threats" have "been used with or against [him] to get [him] to come into court this morning and plead guilty" and that no "promises [had] been made to [him] of any kind, other than what's been stated in this plea agreement."

In response to questions by his counsel, Nguyen (still under oath) stated in yes or no answers that, with respect to the contract involved in count IX, which had been signed by the predecessor president of the Company, he was "aware" that the "application forms" submitted to the government "were false in a number of ways and still were submitted" and were "false in their representations as to the experience of certain of the employees which were listed on those forms," and he added that "the experience was not from our EWA company," and acknowledged that their experience was "misrepresented"; that "[t]he application also overstated the number of employees which EWA had at the time"; that "during the course of work performed under this contract in 1986 and 1987, there were also some hours billed to the COE [Corps of Engineers] which were hours for which work actually had not been performed"; that in 1985 and 1986 there were "employees who charged time which they had worked on other contracts independent of the YIN [Yakima Indian Nation] contract to the YIN contract" and that he was "aware" that two employees had "charge[d]" work to the Yakima contract that they had not done under that contract.

In connection with his yes or no answers to questions by his counsel, Nguyen volunteered some incriminating statements. In stating that work had been done "on the so-called Defense Waste Project," Nguyen stated: "we know that it was not authorized by the U.S. Department of Energy, and we billed it to the Yakima Indian Nation without the DOE authorization, sir." He also stated that he had "order[ed]" an employee "to provide quality assurance and review some of our work. And I know that it was not authorized by the U.S. Department of Energy, and I did charge that time to the contract, sir."

Nguyen then stated, in response to a question by the court, that his "answers to" "each questions [sic] that's been asked of you here this morning" have been "true and correct."

On April 9, 1991, Nguyen was given concurrent sentences of thirty-three months imprisonment on the two counts of which he was convicted. Almost four months later, on August 5, 1991, he moved under Rule 35 of the Federal Rules of Criminal Procedure for a reduction of sentence, which the district court denied.

B. On August 23, 1993, Nguyen moved, pursuant to 28 U.S.C. § 2255, to vacate his conviction and sentence on the ground that his guilty plea was coerced and involuntary. This was 32 months after he pleaded guilty on November 30, 1990, 28 months after he had been sentenced, and 24 months after he had moved for a reduction of sentence. Nguyen had been released from confinement and his probation ended on the date he filed the 2255 motion.

A lengthy declaration by Nguyen accompanied the motion, in which he contested most of the statements he had made at the plea hearing. According to Nguyen, his plea was involuntary because (1) he had been denied effective assistance of counsel because his counsel was not adequately prepared for trial, as a result of which he had been coerced and induced to plead guilty; (2) the government had coerced his guilty plea by threatening that otherwise (a) it would file a civil liability suit against him and the Company and (b) it would seek application of the Sentencing Guidelines, with their harsher penalties, and by insisting that his guilty plea be "part of a package" under which his individual co-defendant also would plead guilty; and (3) the government had failed to turn over to him documents it had obtained from the Company under a search warrant, which allegedly would have established his innocence. He asserted that he was innocent of the crimes to which he had pleaded guilty.

The district court denied the motion without a hearing, ruling that Nguyen's "guilty plea was knowing and well-advised." The court ruled that Nguyen "made no showing that he received ineffective assistance [of counsel], or that any alleged ineffectiveness prejudiced his defense." The court rejected his claim that the government had coerced his plea by threatening a civil suit or seeking application of the Sentencing Guidelines. The court stated that Nguyen "may have felt overwhelmed by such information, but he could not have proceeded in a knowing and informed fashion without it." With respect to Nguyen's claim that the government withheld exculpatory documents, the court "determine[d] that the disclosures would not have affected petitioner's decision whether to plead." Finally the court "reject[ed]"

petitioner's claims of innocence. A review of the transcript of petitioner's change of plea hearing reveals that he volunteered a number of incriminating statements under oath. At no time during or after the plea hearing did petitioner proclaim his innocence. He now claims he lied at the change of plea hearing, but the record shows no indication of falsehood. He would prefer that the Court accept his present, unsworn statements over his previous sworn testimony at his plea hearing. At best, he presents himself as a perjurer at his plea hearing. Faced with this material, the Court credits petitioner's prior sworn statements.

Although Nguyen had completed his imprisonment and supervised parole prior to the district court's adjudication, "[t]he case is nevertheless not moot, because the federal conviction could have collateral consequences in the future, and [Nguyen] was still in federal custody when he instituted these § 2255 proceedings," Clemmons v. United States, 721 F.2d 235, 237 n. 3 (8th Cir.1983); see also Leonard v. Nix, 55 F.3d 370, 372-73 (8th Cir.1995), since "[a] probationary term is sufficient custody to confer jurisdiction" under § 2255. United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1470 (9th Cir.1988), cert. denied, 493 U.S. 809, 110 S.Ct. 51, 107 L.Ed.2d 20...