Unpublished Disposition, 924 F.2d 1062 (9th Cir. 1986)

MEMORANDUM^** 

Joseph Kosseff appeals the district court's denial after an evidentiary hearing of his petition for a common law writ of error coram nobis. We have jurisdiction under 28 U.S.C. section 1291 and affirm.

* As a preliminary matter we must discuss the record before us. Kosseff has moved to strike the government's 1977 appellate brief from the record on appeal, arguing that it was not properly before the magistrate. We deny his motion.

The first question we address is whether the brief was ever submitted for the magistrate's consideration. Contrary to Kosseff's assertions in his brief and at oral argument, the transcript of the evidentiary hearing makes patently clear that the government's brief was filed with the magistrate during the course of the hearing. In fact, not only was the brief used by the government to refresh the recollection of a witness, Reporter's Transcript ("R.T.") 6/13/86, afternoon session, 19-21, but the fact that it had been filed with the court was expressly noted by the magistrate:

The government has today filed a copy of it's [sic] brief before the United States Court of Appeals for the Ninth Circuit. I understand that's what you're referring to, counsel?

Id. at 20. The transcript also reveals that the magistrate stated his intent to rely on the materials filed during the evidentiary hearing (which would have included the government's brief),¹  as well as any other records he was able to recover.²  Given this record, we conclude that the government's brief was offered at the evidentiary hearing, that Kosseff had notice of that fact, and that it was therefore properly considered by the magistrate.³ 

The second question we must address is whether the brief may be considered part of the record on appeal. Kosseff correctly notes that it was neither formally entered into evidence nor noted on the docket sheet. It therefore technically falls outside the record on appeal as defined by Ninth Circuit Rule 10-2. We nevertheless find that the brief may properly be considered part of the record on appeal. We do so under Fed. R. App. P. 10(e), which provides in part, "If anything material to either party is omitted from the record by error or accident ..., the court of appeals, ... of its own initiative, may direct that the omission or misstatement be corrected." Although we have consistently construed Rule 10(e) narrowly, given the clear evidence in the record that the government's brief was presented at the evidentiary hearing and relied upon by the magistrate, we may employ it to amend the record on appeal. See Daly-Murphy v. Winston, 837 F.2d 348, 351 (9th Cir. 1987); United States v. Walker, 601 F.2d 1051, 1054-55 (9th Cir. 1979); see also Salinger v. Random House, Inc., 818 F.2d 252, 253 (2d Cir.) (court of appeal may supplement the record pursuant to Rule 10(e) upon showing that district court considered evidence at issue), cert. denied, 484 U.S. 890 (1987). Doing so will "clarif [y] our understanding of the process by which the [magistrate] reached the decision challenged on appeal." Salinger, 818 F.2d at 253.

To do otherwise, and either exclude the brief or remand for yet another evidentiary hearing as Kosseff suggests, would be contrary to the interests of justice and the efficient use of judicial resources. See Dickerson v. Alabama, 667 F.2d 1364, 1369 (11th Cir.) (appellate court may, in interests of justice and efficient use of judicial resources, supplement record on appeal rather than remand to reconsider evidence not considered below), cert. denied, 459 U.S. 878 (1982). Moreover, Kosseff is in no way prejudiced by the inclusion of the brief in the record on appeal. As the record from the evidentiary hearing makes clear, he cannot in good faith contend that he was without notice of the existence of the government's appellate brief or its contents. He has also failed to indicate how the brief was misused or in what way the magistrate's findings were defective. There is no support for his suggestion that the magistrate used the brief "as a substitute for the trial transcript." Rather, a review of the magistrate's findings and the transcript of the evidentiary hearing suggests that the primary evidence upon which the magistrate relied was the testimony given at the hearing; the brief was properly used as an aid in the reconstruction of the original trial record. We therefore deny Kosseff's motion and declare that the government's 1977 appellate brief is part of the record on appeal.⁴ 

II

Turning to the merits, we review Kosseff's ineffective assistance of counsel claim de novo. Tinsley v. Borg, 895 F.2d 520, 531 (9th Cir. 1990). Kosseff must establish that the performance of his counsel, Robert Talcott, was deficient and that Talcott's deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). His sole claim is that Talcott's failure to call Richard Donner constituted ineffective assistance of counsel.

* We first address the parties' conflicting claims about the nature of the government's case against Kosseff, since this is a necessary prerequisite to assessing the relevance of Donner's testimony. The government asserts that its case centered upon specific misrepresentations made by Kosseff and his codefendant to prospective purchasers of United General Theatres' ("UGT") mini-theatre franchises. Kosseff, however, argues that a substantial part of the government's case against him was his alleged misconduct in controlling and operating UGT and Franchise Marketing Service, Inc. ("FMS"), matters with which Donner was familiar. While the record is incomplete in many respects, there is substantial evidence to support the government's version. This includes the government's original indictment, which enumerated eight specific misrepresentations,⁵  the testimony of Talcott,⁶  the testimony of David Sobel, trial counsel to Kosseff's codefendant Joseph Warshauer,⁷  and the government's appellate brief.⁸  Virtually all of this evidence is unrefuted. Kosseff introduced no substantive evidence to the contrary other than his own testimony at the evidentiary hearing and eleven pages of the trial transcript containing his testimony about UGT and FMS. Given that the original trial lasted eight weeks, during which sixty-seven witnesses testified, this evidence is woefully inadequate to overcome the substantial evidence supporting the government's version of the case. We therefore affirm the magistrate's finding that the issue at trial "was not the legitimacy of the underlying operation, but the manner in which it was represented and sold."

B

To overcome the "strong presumption that [Talcott's] conduct [fell] within the wide range of reasonable professional assistance," Strickland, 466 U.S. at 689,⁹  Kosseff must "affirmatively prove prejudice," id. at 693. That is, he must establish that there is a reasonable probability that had Donner testified, he would not have been found guilty of mail fraud. Id. at 694.

To obtain Kosseff's conviction for mail fraud, the government was required to prove that he (1) used the mails in interstate commerce; (2) in furtherance of a scheme to defraud; (3) with the intent to defraud. United States v. Bonanno, 852 F.2d 434, 440 (9th Cir. 1988), cert. denied, 488 U.S. 1016 (1989). Reckless disregard for truth or falsity is sufficient to sustain a mail fraud conviction. United States v. Farris, 614 F.2d 634, 638 (9th Cir. 1979), cert. denied, 447 U.S. 926 (1980).

We have carefully reviewed the record from the evidentiary hearing and conclude that Donner was unable to offer any testimony that would have enabled Kosseff to refute seven of the eight fraudulent misrepresentations he was alleged to have made.¹⁰ 

With respect to the "proven track record," Donner stated that he was unaware of UGT's representations about its "track record." R.T. 6/13/86, afternoon session, 115-16. He was likewise unaware of the existence and profitable operation of UGT pilot mini-theatres. Id. Donner's testimony that "somewhere" mini-theatres were operational, id. at 100-01, would not have rebutted evidence that UGT falsely claimed to be operating its own pilot mini-threatres. As to the celebrity film board, Donner would have testified to his presence at a meeting at which two celebrities indicated a willingness to review films, but this testimony would not have negated the government's allegation that UGT represented to franchisees that the board actually existed and actively reviewed films. Id. at 116. Donner's testimony regarding Moorehead's investment would have actually confirmed the government's allegation that Kosseff misrepresented Moorehead's role as a franchisee; it also would have revealed that his own due diligence failed to uncover this misrepresentation. Id. at 116-17. Donner's testimony on booking was equivocal, but on the crucial issue of whether UGT had the ability to obtain block booking discounts (as it had claimed), he could not offer any dispositive testimony. Id. at 119-20. With respect to the availability of 16 millimeter films, Donner conceded that first-run prints were not widely available, contrary to UGT's representations. Id. at 120-21. He also conceded that UGT had only one motion picture in production, rather than the numerous fully funded films claimed by UGT. Id. at 121.

The only aspect of Donner's testimony that might have aided Kosseff involved the technological availability of fully automated theatres, but it was also potentially damaging. Donner testified to his "personal [ ] and substantial [ ]" involvement in negotiations with Viewlex about the operation of a fully automated theatre system. Id. at 88. He admitted, however, that he had never seen a fully automated theatre in operation, id. at 118, that his due diligence investigation consisted of little more than several phone calls, id. at 88-89, and that there was "an on-going controversy" over the technical capabilities of the system, id. at 87. Since the original indictment alleged that Kosseff misrepresented the availability of fully automated threatres, Donner's testimony about the nature of the due diligence performed in investigating the Viewlex system (and by implication Kosseff's knowledge of the system's technical limitations) may actually have been harmful to Kosseff's defense.

Despite the largely absent trial record, having reviewed the central allegations in the government's case and the direct testimony of Talcott, Sobel, and Donner, we are in complete agreement with the magistrate that Donner was not "an essential defense witness." We cannot say, as Strickland requires us to find, that had Donner testified there would have been a reasonable probability that Kosseff would not have been convicted of mail fraud. We therefore affirm the magistrate's conclusion that Kosseff failed to meet either prong of the Strickland test.

III

For all the foregoing reasons, we AFFIRM.