U.S. v. Weeks

• Decision Date: 09 August 2011
• Docket Number: Nos. 09–4171,09–4183.,s. 09–4171
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Robert G. WEEKS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

653 F.3d 1188

UNITED STATES of America, Plaintiff–Appellee,

v.Robert G. WEEKS, Defendant–Appellant.

Nos. 09–4171

09–4183.

United States Court of Appeals, Tenth Circuit.

Aug. 9, 2011.

Kent R. Hart, Assistant Federal Defender (Scott Keith Wilson, Assistant Federal Defender and Steven B. Killpack, Federal Defender, with him on the briefs), Salt Lake City, UT, for Defendant–Appellant.Diana Hagen, Assistant United States Attorney (Stewart C. Walz, Assistant United States Attorney and Carlie Christensen, Acting United States Attorney, with her on the brief), Salt Lake City, UT, for Plaintiff–Appellee.Before TYMKOVICH, SEYMOUR, and HOLMES, Circuit Judges.SEYMOUR, Circuit Judge.

Robert G. Weeks pled guilty to conspiracy to commit securities fraud. He now argues his guilty plea was not knowing and voluntary and was the result of ineffective assistance of counsel. We consolidated his direct appeal with the appeal from the district court's denial of his § 2255 petition. We affirm Mr. Weeks' conviction on his direct appeal, but we reverse the dismissal of his § 2255 petition.

I.

This appeal reaches us in an unusual posture. In 2002, Mr. Weeks pled guilty to conspiracy to commit securities fraud. He agreed to cooperate with the government and to testify against his co-defendants. Four years later, Mr. Weeks was sentenced to a year and a day in prison, and was ordered to pay a fine of $51,643.25.¹ Mr. Weeks did not file a direct appeal.

A year after sentencing, Mr. Weeks filed a timely pro se motion under 28 U.S.C. § 2255 to vacate his conviction, raising a claim of ineffective assistance of counsel on six grounds. The district court denied relief on five of the grounds, but granted an evidentiary hearing on Mr. Weeks' claim that his counsel was ineffective for refusing his request to file a direct appeal from his conviction.

The district court appointed counsel for Mr. Weeks prior to the evidentiary hearing. Counsel filed a motion to expand the issues in Mr. Weeks' 2255 motion and/or to reconsider the court's denial of Mr. Weeks' ineffective assistance claim on the five other grounds. The district court denied the motion. After holding an evidentiary hearing on the one remaining claim, the court found Mr. Weeks' trial counsel ineffective for failing to file a direct appeal. The court entered an amended judgment of conviction to restore Mr. Weeks' right to appeal his conviction.

Mr. Weeks filed a direct appeal. He also appealed the district court's denial of the remainder of his § 2255 ineffective assistance claims without an evidentiary hearing, as well as the denial of his motion to amend the petition. We consolidated the appeals, and we granted a certificate of appealability to Mr. Weeks on the denial of his § 2255 petition. We now consider both of his appeals.

II.

The criminal charges against Mr. Weeks and his co-defendants arose from the unregistered sale of stocks issued by Mr. Weeks' corporation, Pan World Minerals International, Inc., while he was president and CEO. Mr. Weeks pled guilty to violating 18 U.S.C. § 371, by participating in a conspiracy to commit securities fraud.

Because the plea colloquy plays a central role in Mr. Weeks' direct and collateral appeals, we provide relevant parts of the colloquy with minimal editing. The district court first confirmed that Mr. Weeks had read and understood the indictment:

THE COURT: Mr. Weeks, have you received a copy of the superseding indictment pending against you in this case, that is the written charges in this case?

[MR. WEEKS]: I have.

THE COURT: Have you read the indictment? ²

[MR. WEEKS]: I have.

THE COURT: Have you discussed it with [your attorney] Mr. Barber?

[MR. WEEKS]: Yes.

Rec., vol. IV at 32–33 (emphasis added).

After Mr. Weeks waived his right to have the indictment read aloud, the district court asked the United States to recite the charges against him:

THE COURT: Mr. Walz, will you please set forth the elements of the conspiracy charge, please.

MR. WALZ: Yes, Your Honor. The elements of a conspiracy charge are, one, that there was an agreement by two or more people, two, to violate any criminal statute of the United States. And in this case the criminal statutes alleged were violation of 15 United States Code, Section 78j(b) and the regulation thereunder, Section 10(b)(5), which is securities fraud, and also 15 U.S.C., Section 17b—or, excuse me—it is 17b. And I have forgotten the number.... 77j. And then also 77q(b)—I apologize—which is providing—or it's actually the statute prohibits the receipt of undis[cl]osed compensation when touting the stock.... Also false statements under 18 U.S.C. 1001, and money laundering under various subsections of Section 1956. After the agreement to violate a statute, it has to be done knowingly and intentionally and then there has to be an overt act committed by one or more of the conspirators in furtherance of the illegal agreement.

THE COURT: Mr. Weeks, do you understand the charge against you and what it means?

[MR. WEEKS]: I do, but I need to consult my attorney.

Id. at 33–34 (emphasis added). After Mr. Weeks spoke with his counsel, Mr. James Barber, Mr. Barber explained Mr. Weeks' concern:

MR. BARBER: His question is because of the naming of the statutes that were the object of the conspiracy, Mr. Weeks was concerned that the plea is for some of the substantive counts. That is not correct. It's simply a charge under Section 371, that you conspired to violate the other sections that Stewart just named on the record.... [T]he gist of the offense is that you conspired with other people, more than one, to commit violations of one or more of those various statutes, and that is the charge.

Id. 34–35 (emphasis added).

The court confirmed that Mr. Weeks understood the charge and proceeded. As the colloquy continued, Mr. Weeks affirmed that he had read and understood the plea agreement and had discussed it with Mr. Barber. Later, the court asked Mr. Weeks to explain what actions made him guilty of the conspiracy charge:

[MR. WEEKS]: I allowed the stock of a public company to be issued to two individuals who took it offshore and broke the laws of the United States.

THE COURT: You did this knowingly?

[MR. WEEKS]: No, but I was a party to it.Id. at 41 (emphasis added). Mr. Barber then volunteered “to direct questions to Mr. Weeks to make it a little bit more clear.” Id. at 42. The court replied:

THE COURT: As you can understand, I am concerned when your client says he did not do this knowingly. I think, as Mr. Walz indicated, that part of the conspiracy element— one of the elements is that the activities were done knowingly. So, yes, if you would like to go ahead and try to do that, please do.

MR. BARBER: Mr. Weeks, you knew, did you not, during the period in question that large numbers of Pan World shares were being sold in the marketplace?

[MR. WEEKS]: I knew that, yes.

MR. BARBER: You knew when that was happening, did you not, that those shares were not registered under the Securities Act of 1933?

[MR. WEEKS]: I knew that.

THE COURT: You knew that because your counsel for Pan World had attempted to file a registration statement that would have cured that problem, but the staff of the commission would not permit it to go effective; is that your understanding of it?

[MR. WEEKS]: That is correct.

MR. BARBER: Now these large amounts of shares were therefore sold, were they not, in reliance on purported exemptions from registration?

[MR. WEEKS]: That's correct.

MR. BARBER: One of your co-conspirators was the individual to whom you looked for advice about that issue; was it not?

[MR. WEEKS]: Yes.

MR. BARBER: And you did not specifically speak with counsel and disclose to him all the facts about the sale of those shares before some of those sales were permitted to be effected, did you?

[MR. WEEKS]: That's probably correct, yeah.

MR. BARBER: In fact, you are convinced now that because there was the sale of offshore securities by your confederates in which they received the proceeds but did not acknowledge the fact that the shares were actually being sold for their account and with the proviso that they would receive the use and benefit of those proceeds, that there was a violation of the Securities Act of 1933 because the seller wasn't anybody who was represented to be the seller and, secondly, there may have been antifraud provisions arising from the fact that persons who were in control of Pan World were participating in a huge market for Pan World Shares without disclosing that to the public? That is what happened, isn't it?

[MR. WEEKS]: Yes.

MR. BARBER: I believe that is adequate. You knew those facts were happening?

[MR. WEEKS]: Yes.

MR. BARBER: When they were happening?

[MR. WEEKS]: Yes.

MR. BARBER: You permitted it to happen notwithstanding?

[MR. WEEKS]: That's correct.

THE COURT: Was your decision not to ask more questions a knowing decision, a conscious decision? Was your decision not to ask more questions about what was happening a conscious decision on your part?

[MR. WEEKS]: I don't remember if it were or weren't.

MR. BARBER: You never took the initiative to ascertain by—I mean you didn't know some of the facts; is that correct?

[MR. WEEKS]: That is absolutely correct.

MR. BARBER: But you also knew that your confederates were receiving substantial sums of money from the sale of Pan World stock?

[MR. WEEKS]: That is true.

MR. BARBER: One of them had the ability to control or to dictate the course of action of Pan World during that period because they were providing all the money that it had available to it; is that correct?

[MR. WEEKS]: That is correct.

MR. BARBER: Notwithstanding that, you did not make any attempt to disclose to the market the fact that the shares of Pan World that were going into the market through a secondary device that was probably illegal as well were being sold on behalf of persons who would be conceived as having been affiliates or controlling persons of the issuer?

[MR....