U.S. v. Michaud

• Decision Date: 11 January 1991
• Docket Number: No. 90-1877,90-1877
• Citation: 925 F.2d 37
• Parties: -648, 91-1 USTC P 50,266 UNITED STATES of America, Appellee, v. Hubert MICHAUD, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 37

925 F.2d 37

67 A.F.T.R.2d 91-648, 91-1 USTC P 50,266

UNITED STATES of America, Appellee, v. Hubert MICHAUD, Defendant, Appellant.

No. 90-1877.

United States Court of Appeals First Circuit.

Heard Jan. 11, 1991.

Decided Feb. 13, 1991.

Rudolph L. Celli, Jr., for appellant.

Karen Quesnel, Tax Div., Dept. of Justice, with whom Shirley D. Peterson, Asst. Atty. Gen., Jeffrey R. Howard, U.S. Atty., Robert E. Lindsay, Alan Hechtkopf and Gail Brodfuehrer, Tax Div., Dept. of Justice, were on brief, for the U.S.

Before BREYER, Chief Judge, CAMPBELL, Circuit Judge, and CAFFREY, ^* Senior District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Hubert Michaud appeals from the district court's denial of his petition for writ of error coram nobis. Michaud seeks a judgment of acquittal, or, alternatively, a new trial. Michaud was convicted on tax evasion charges for the years 1980 and 1981 under 26 U.S.C. Sec. 7201 (1982). This is his third appeal to this court in this case. On Michaud's direct appeal alleging governmental misconduct and insufficiency of the evidence, we affirmed the conviction. United States v. Michaud, 860 F.2d 495 (1st Cir.1988). Michaud then appealed from the district court's denial of his pro se motion under 28 U.S.C. Sec. 2255, seeking relief from the same conviction. We affirmed the district court's denial of the motion because Michaud was no longer in custody when the motion was filed. United States v. Michaud, 901 F.2d 5 (1st Cir.1990) (per curiam). Now, in this petition for a writ of error coram nobis, Michaud reasserts arguments made in his Sec. 2255 motion, and reconfigures issues previously resolved on direct appeal as claims of his counsel's conflict of interest and ineffective assistance, as well as of prosecutorial misconduct. We affirm.

We observe initially that the district court dismissed Michaud's petition without an evidentiary hearing. While Michaud does not request us to remand for such a hearing, this appeal implicitly raises the question whether there should have been a hearing at which the facts surrounding Michaud's allegations would be further developed. We think not. On motion for postjudgment relief,

[c]onclusory allegations unsupported by specifics are insufficient to require a court to grant an evidentiary hearing, " 'as are contentions that in the face of the record are wholly incredible....' " Phillips v. Murphy, 796 F.2d 1303, 1304 (10th Cir.1986) (quoting Blackledge v. Allison, 431 U.S. 63, 74 [97 S.Ct. 1621, 1629, 52 L.Ed.2d 136] (1977));

Hopkinson v. Shillinger, 866 F.2d 1185, 1211 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3256, 111 L.Ed.2d 765 (1990). See also Stano v. Dugger, 901 F.2d 898, 899 (11th Cir.1990) (petitioner not entitled to evidentiary hearing where claims are conclusory and unspecific); Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir.1990) (per curiam) ("A petition [for post-judgment relief under 28 U.S.C. Sec. 2255] can be dismissed without a hearing if the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or if the allegations cannot be accepted as true because 'they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.' ") (citations omitted).

I.

Collateral attack on a judgment by common law writ of error coram nobis, preserved by the All Writs Act, 28 U.S.C. Sec. 1651(a), is limited to "those cases where the errors were of the most fundamental character, that is, such as rendered the proceeding itself irregular and invalid." United States v. Addonizio, 442 U.S. 178, 188, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979), citing United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 19-20, 59 L.Ed. 129 (1914). Historically, coram nobis has been justified where errors of fact are raised which have not previously been before the court. United States v. Bush, 888 F.2d 1145, 1148 (7th Cir.1989) (discussing history of coram nobis and collecting cases). "It has, of course, long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." Addonizio, 442 U.S. at 188, 99 S.Ct. at 2242 (footnote omitted). See United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 252, 98 L.Ed. 248 (1954) ("Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy [of coram nobis ] only under circumstances compelling such action to achieve justice."). ¹

The facts of this case are fully set forth in our opinion on direct appeal, and we restate them only insofar as is necessary to address the issues raised in this petition for writ of error coram nobis. Michaud was convicted of tax evasion for taking deductions for bogus charitable contributions made to the Life Science Church ("LSC"), which is not a charitable organization qualified for tax exempt status under 26 U.S.C. Sec. 501(c)(3), but, rather, was organized simply to offer a mechanism to reduce personal income taxes.

Michaud's arguments in this appeal, as in his direct appeal, rest principally on allegations of misconduct by Internal Revenue Service ("IRS") Agent Darby Levy, who was assigned to audit Michaud's 1979 tax return. Michaud, 860 F.2d at 498. Michaud argued on direct appeal that Agent Levy violated IRS regulations which require that, upon discovery of a "firm indication of fraud," an agent must cease civil investigation and refer the case to the IRS criminal division. 3 Internal Revenue Manual ("IRM") (Audit) Sec. 4565.21 (CCH). Michaud relies on notations Agent Levy made in an activity record to support his allegation that Levy violated this provision.

We rejected Michaud's contentions in this regard on direct appeal. We concluded: first, that the facts doubtfully constituted a violation of IRS regulations, which confer discretionary authority to decide when a suspicion of fraud is "firm," Michaud, 860 F.2d at 499, citing Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566, 100 S.Ct. 790, 797, 63 L.Ed.2d 22 (1980) (considerable weight must be given official's or agency's interpretation of own regulations); and second, that violation of a regulation such as this, which is not constitutionally or statutorily mandated, does not prevent prosecution and conviction nor does it require the suppression of evidence. Michaud, 860 F.2d at 499, citing United States v. Caceres, 440 U.S. 741, 754-55, 99 S.Ct. 1465, 1472-73, 59 L.Ed.2d 733 (1979).

In this appeal, Michaud suggests instances of IRS violations of IRM regulations in addition to those he earlier raised. These include purported violation of regulations requiring that the Criminal Investigation Division specify the need for assistance from Civil Revenue Agent Levy on specific forms, 6 IRM Sec. 9322.2(1) (CCH), and violation of regulations requiring that the Criminal Investigation Division accept a fraud referral from the Civil Audit Division within 20 working days, 2 IRM (Audit) Sec. 4565.23 (CCH). Michaud also contends that two witnesses--his business associates Mayer Friedberg and Anthony Induisi--committed perjury as government witnesses. Further, he again raises the issue, addressed on direct appeal, of improper cross-examination of his defense expert. See Michaud, 860 F.2d at 500. Finally, Michaud asserts that one of his three attorneys, Joseph Rodio, taught classes to IRS auditors on the subject of potential signs of criminal activity during the course of his representation, and that this activity created an actual conflict of interest with Rodio's representation of Michaud.

II.

Tied in with the above allegations, Michaud makes three arguments on appeal. First, he argues that Attorney Rodio's association with the IRS so affected the adequacy of his representation of Michaud as to deprive Michaud of his Sixth Amendment right to effective assistance of counsel. In Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the Supreme Court held in the context of multi-defendant representation: "In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718 (footnote omitted). In Brien v. United States, 695 F.2d 10 (1st Cir.1982), this court held that to establish an actual conflict of interest, the petitioner must prove, one, that "some plausible alternative defense strategy or tactic might have been pursued," and two, that "the alternative defense was inherently in conflict with the attorney's other loyalties or interests." Brien, 695 F.2d at 15 (footnotes omitted). Michaud submits that Rodio, because of the conflict, declined to conduct a pre-trial investigation of Agent Levy's conduct and declined to demand the production of documents which would allegedly demonstrate Agent Levy's violation of IRS regulations.

Second, Michaud argues that Attorney Rodio's representation amounted to ineffective assistance of counsel which prejudiced his defense. Michaud emphasizes Rodio's failure at trial to probe Agent Levy's compliance with IRS regulations, failure to object to admission of evidence obtained allegedly in violation of IRS regulations, and failure adequately to cross-examine witnesses Induisi and Friedberg to expose their alleged perjury. To establish ineffective assistance of counsel, Michaud must prove that Rodio's deficient performance prejudiced his defense to the point that there is a reasonable probability that the deficiency was outcome determinative. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). ²

Third, Michaud claims that but for prosecutorial misconduct, he would not have been convicted. Michaud alleges: (1) the government improperly suppressed evidence of Agent Levy's violation of IRS regulations; ³ (2) the...