Porcaro v. U.S.

• Decision Date: 01 April 1986
• Docket Number: No. 84-1808,84-1808
• Citation: 784 F.2d 38
• Parties: Peter J. PORCARO, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 38

784 F.2d 38

Peter J. PORCARO, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 84-1808.

United States Court of Appeals First Circuit.

Submitted Sept. 13, 1985.

Decided Feb. 21, 1986.

As Amended Feb. 28, 1986.

Rehearing Denied April 1, 1986.

Peter Porcaro on brief, pro se.

Gary S. Katzmann, Asst. U.S. Atty., and William F. Weld, U.S. Atty., on brief for appellee.

Before CAMPBELL, Chief Judge, BREYER and TORRUELLA, Circuit Judges.

PER CURIAM.

Petitioner, convicted of mail fraud, appeals from the order dismissing his Sec. 2255 petition without a hearing, 588 F.Supp. 1366. We deal with each of petitioner's contentions in the order presented in the petition and affidavit. We do not consider the supplemental allegations petitioner has included in his appellate brief, but rather restrict our review to the record. Glaros v. Perse, 628 F.2d 679, 681 (1st Cir.1980).

Ground 1: Variance between indictment, proof and charge

Petitioner contends that the indictment was in effect impermissibly amended to conform to the proof in that the indictment charged a knowing use of the mails whereas the jury were charged that petitioner need not have knowingly used the mails but rather it was sufficient that petitioner performed certain acts under circumstances where it was reasonably foreseeable that the mails would be used.

To begin with, petitioner's argument fails because the superseding indictment does not read as petitioner claims. Rather the indictment charged, with respect to use of the mails, that petitioner "did place and caused to be placed" certain matter in the mail. This charge was substantially in line with both the evidence and the jury instructions.

Petitioner's arguments seem to assume that a specific, consciously thought out intent to use the mails in an essential element of mail fraud. It is not. It is sufficient that the success of the scheme to defraud be dependent in some way on mailing and that defendant caused the mails to be used. A person causes the mails to be used when "he does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended ..." Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-363, 98 L.Ed. 435 (1954). Nor do we find the mail fraud statute as applied to petitioner unconstitutionally vague or violative of the rule of lenity.

Ground 2. Unconstitutionality of mail fraud statute

Petitioner seems to argue that it is beyond Congress's constitutional power to enact a statute proscribing mail fraud. Petitioner is wrong. Congress "may forbid any ... [mailing] ... in furtherance of a scheme that it regards as contrary to public policy...." Badders v. United States, 240 U.S. 391, 393, 36 S.Ct. 367, 368, 60 L.Ed. 706 (1916).

Ground 3. Ineffective Assistance of counsel

To establish a claim of ineffective assistance of counsel, petitioner would have to show both (1) that "counsel's representation fell below an objective standard of reasonableness" and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984). In the present case, petitioner was denied a hearing at which to establish his ineffective assistance claim, and thus we must determine whether petitioner made sufficient factual allegations which, if true, would state a claim on which relief could be granted. United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1772, 84 L.Ed.2d 832 (1985). We accept petitioner's allegations as true except to the extent they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. Mack v. United States, 635 F.2d 20, 26-27 (1st Cir.1980). We turn to petitioner's specific claims of ineffective assistance.

1. Failure to present favorable evidence.

Petitioner's affidavit alleged, among other things, that petitioner informed counsel of eleven satisfied customers who would have testified that petitioner made no misrepresentations, did not use any high pressure sales tactic, fulfilled all promises, and made cash refunds when required. ¹ A brief review of the evidence at petitioner's trial places the relevancy of satisfied customer evidence in perspective. Petitioner was convicted of numerous counts of mail fraud arising out of the sale by petitioner or his agents of a number of distributorships, the value of which had been grossly exaggerated. The prosecution's case consisted largely of the testimony of fourteen or so victims who, attracted by petitioner's advertisements and hyperbole, invested, and then lost, their money. A Massachusetts Assistant Attorney General who had investigated petitioner and obtained a preliminary injunction enjoining petitioner from using some of his more blatant advertising ruses also testified. He emphasized that during his negotiations with petitioner, he asked petitioner to produce just one satisfied customer, but petitioner never did. The only defense witnesses were petitioner and his co-defendant who testified that they never intended to mislead or defraud anybody, that they attempted to satisfy all their customers' needs, and that they did not make any misrepresentations and tried to ensure that their agents made none.

Petitioner's argument is that against this background--particularly the Assistant Attorney General's claim that petitioner had never produced even one satisfied customer--had a number of truly satisfied customers been presented to the jury, petitioner's claim that he was running a legitimate business would have been greatly enhanced and petitioner would probably have had a significantly better chance for acquittal.

It may well be that satisfied customer evidence, if it existed, would have been relevant and admissable with respect to petitioner's intent. See, e.g., United States v. Shavin, 287 F.2d 647, 652 (7th Cir.1961) (attorney charged with a mail fraud scheme which consisted of submitting inflated personal injury claims to insurance companies on behalf of a number of clients should have been permitted to show the uninflated claims submitted on behalf of other clients). And, depending on the number of witnesses and the strength of their testimony, perhaps the outcome might have been different. On the other hand, we can envision circumstances where the decision not to call satisfied customers would be sustainable as rational trial tactics. For example, if the so-called satisfied customers had also lost their investment, even though they might not have held the loss against petitioner, counsel could reasonably conclude their evidence would not have aided petitioner. Much depends on the circumstances, cf., Shraiar v. United States, 736 F.2d 817, 818 (1st Cir.1984) (omitted evidence would not have contradicted evidence of defendant's guilt), and we cannot say that at the preliminary pleading stage at which the court dismissed the Sec. 2255 petition, petitioner had failed to state a claim. This does not necessarily mean that on remand petitioner will be entitled to an evidentiary hearing, however. Rather, the more expeditious course may be to require petitioner to obtain affidavits from the allegedly satisfied customers and other persons, see Rule 7 of the Rules Governing Section 2255 Proceedings in the United States District Courts, and then, depending upon the content of the affidavits, to determine whether an evidentiary hearing is warranted. ²

2. Counsel's failure to object to jury charges.

Petitioner contends the charge impermissibly shifted the burden of proof concerning intent to petitioner. We have already rejected this argument in our opinion affirming petitioner's conviction. United States v. Porcaro, 714 F.2d 109, slip op. at 12-13 (1st Cir.1983).

3. Counsel's failure to object to trial judge's mannerisms, move for a mistrial, or request judge to recuse self.

Petitioner contends that he was denied effective assistance of counsel in that counsel tolerated, without comment, improper and prejudical remarks and mannerisms on the part of the trial judge. While petitioner's Sec. 2255 petition does not set forth many details, his motion to recuse the trial judge from passing on his Sec. 2255 petition does, and we will consider the allegations set forth therein as if incorporated by reference into the Sec. 2255 petition.

Petitioner alleged, under penalty of perjury, that, during trial

"[t]he trial judge would look at the jury and make faces, shake his head in disbelief, look at the ceiling ... use obvious jesters and mannerisms whenever defense witnesses testified conveying the impression to the jury that the defense witness should not be believed. Yet whenever a government witness testified the trial judge would express a genuine interest and nod his head in approval looking directly at the witness then at the jury."

These allegations are uncontradicted and therefore, at this stage, must be accepted as true. If such pervasive nonverbal communication took place, counsel should have objected and called the matter to the judge's attention. See Coleman v. De Minico, 730 F.2d 42, 47 n. 5 (1st Cir.1984).

The government, relying on Buckelew v. United States, 575 F.2d 515 (5th Cir.1978), argues the allegations do not rise to the level of a constitutional violation cognizable in a Sec. 2255 proceeding. We disagree. The conduct alleged in Buckelew was not as pervasive as that alleged here, and Buckelew does not foreclose entertaining petitioner's claim in a Sec. 2255 proceeding.

At this preliminary pleading stage, we cannot say that no claim of ineffective assistance of counsel was stated with respect to counsel's failure to object to the alleged judicial misconduct, and thus it was error to summarily dismiss...