Unpublished Disposition, 916 F.2d 716 (9th Cir. 1990)

MEMORANDUM^* 

John Patrick Acord appeals the district court's denial of his motion to vacate or set aside his sentence under 28 U.S.C. § 2255. He contends that his guilty plea was involuntary, that his counsel was ineffective and had a conflict of interest, and that the government breached a plea agreement. We affirm.

ANALYSIS

In support of his contention that his guilty plea was involuntary, Acord argues he was induced to plead guilty because his lawyer misrepresented that the government had agreed to recommend a sentence of two to three years incarceration in exchange for Acord's guilty plea. The government did not recommend a two to three year sentence. Acord was sentenced to one ten-year term and five five-year terms, all to run concurrently.

Acord relies upon his own testimony and a declaration from his former attorney, Peter Brown. In the declaration, Brown stated that he and Acord jointly decided to "seek the government's help in recommending a minimal sentence of less than five years, and hopefully two or three years with full restitution." Brown also stated that in pursuit of this objective, he obtained a letter from the government in which the government "committed to accept the above, saying the sentencing recommendation would be commensurate with the cooperation provided and acceptance of a full restitution order." The letter was never produced. The prosecutor denied furnishing such a letter and denied having made any deal with Acord other than that set forth in the written plea agreement. The plea agreement provided that in return for Acord's guilty plea to certain specified counts, and his agreement to make himself available for a deposition, the government would "dismiss the remaining counts of the Indictment and ... make known the degree of cooperation by Defendant JOHN ACORD at the time of sentencing."

Brown's declaration does not substantiate Acord's misrepresentation claim. At best it is equivocal. Acord's testimony supports his claim, but it is belied by his earlier testimony at the time he changed his plea. At the change-of-plea hearing, Acord solemnly swore under oath that no promises had been made to him by either the prosecutor or his attorney, other than those contained in the plea agreement and disclosed to the court. "Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also United States v. Boniface, 601 F.2d 390, 393 (9th Cir. 1979) (defendant's assertion that his attorney's misrepresentations induced him to plead guilty rejected when court conducts a thorough inquiry and satisfies itself that the defendant has been informed about all relevant matters).

We conclude that Acord did not plead guilty involuntarily.

For challenges to guilty pleas based on ineffective assistance of counsel, courts apply the two-part test of Strickland v. Washington, 466 U.S. 668 (1984). See Hill v. Lockhart, 474 U.S. 52, 58 (1985). Under this test, a defendant must show that his counsel's performance fell below that of reasonably effective assistance, and that this deficiency prejudiced the defense. Strickland, 466 U.S. at 687, 692. " [C]ounsel is strongly presumed to have rendered adequate assistance." Id. at 690. " [T]o satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59.

Acord's counsel's performance did not fall below that of reasonably effective assistance, nor was Acord prejudiced by his counsel's performance. Acord produced no credible evidence that the alleged secret plea agreement ever existed. Thus, there can be no finding that his counsel's performance in failing to make such an agreement known to the court was deficient. Acord has also failed to show, except for his bare assertions, that but for his attorney's failure to make the court aware of the alleged secret agreement, a reasonable probability exists that he would have insisted on going to trial. See id., 474 U.S. at 59. As the district court noted, Acord faced two trials on a total of thirty-six counts, each carrying a possible sentence of up to five or ten years. See United States v. Freeny, 841 F.2d 1000, 1002 (9th Cir. 1988) (improbable defendant would have insisted on going to trial where he faced forty-one counts, each carrying a possible twenty-year sentence and a fine).

We conclude Acord has not established that his counsel's conduct was ineffective under the two-prong test of Strickland.

Acord bases his conflict of interest contention on testimony Brown gave in a deposition taken by the Securities and Exchange Commission in Florida. Acord argues that Brown's testimony in this deposition prevented him from challenging a statement in the government's sentencing memorandum that Acord had misappropriated several thousand dollars of investor funds. The statement in the sentencing memorandum pertained to the question of restitution.

Acord's argument overlooks the strategy that he and his attorney had adopted in plea negotiations. Their strategy was not to contest the civil claims against Acord, or the possible restitution order, in order to get the government to dismiss most of the charges against Acord. This strategy worked. It never was in the game plan of Acord or his attorney to challenge restitution. Accordingly, Acord's conflict of interest contention on this basis lacks merit.

As an additional basis of his conflict of interest claim, Acord contends a conflict existed because the prosecutor indicated that Brown might be called as a witness to testify at Acord's trial concerning matters which had come up during Brown's deposition in the Florida proceeding. We reject this contention. Brown argued in court that the Florida deposition proceeding was irrelevant to the criminal charges against Acord, and that he and the prosecutor were close to working out a disposition of those charges. Thus, the district court was alerted to the possibility that defense counsel might be called as a witness if the case against Acord went to trial. But that did not happen. A plea agreement was reached, Acord pleaded guilty, the vast majority of charges against him were dismissed, and no trial occurred. The "prejudice" of which Acord complains never happened.¹ 

Acord argues the government breached its plea agreement with him because, although he cooperated with the government, at the time of sentencing the prosecutor stated that "many of the answers [given by Acord when he was questioned following his change of plea] were rationalizations for what was done" and that there "wasn't a whole lot of new information provided." Acord argues that he answered the government's questions fully, and that the prosecutor told Acord's local counsel that the prosecutor was "satisfied" with Acord's cooperation.

We reject Acord's argument that the government breached the plea agreement. The government was not bound to state that Acord's cooperation was valuable. It was entitled to give its assessment of the extent of his cooperation. This was made clear by the plea agreement. That agreement provided that the government would make known to the court, at the time of sentencing, the extent of Acord's cooperation, and that " [b]oth parties are free to argue for an appropriate punishment at the time of sentencing."

Acord argues this interpretation of the agreement means he gained nothing by pleading guilty. This is not so. He obtained the dismissal of thirty of the thirty-six counts he faced.

AFFIRMED.