Unpublished Disposition, 924 F.2d 1062 (9th Cir. 1986)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1062 (9th Cir. 1986)

Joseph W. KOSSEFF, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.

No. 89-55097.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 1990.Decided Jan. 29, 1991.

Before REINHARDT and CYNTHIA HOLCOMB HALL, Circuit Judges and RE* , Chief Judge.


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.

 *

The Honorable Edward D. Re, Chief Judge, United States Court of International Trade, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

"I gather that we are not going to reconstruct the trial transcript. We have reconstructed the trial to some extent in the material file [d] here and in the testimony before us." R.T. 6/13/86, afternoon session, 147

 2

"Now, the court will call for such files as exist

* * *

I think the court is going to have to reconstruct the trial as best it may and then relate the testimony that's been given today to the reconstruction. This hearing has been extremely helpful.

* * *

I'm also going to try to get the entire records, the complete, the whole bit. All the affidavits, see just how they line up." Id. at 147-150.

 3

Despite Kosseff's professed astonishment at the magistrate's use of the government's brief, his conduct lends support to our conclusion that the brief was properly before the magistrate. Although Kosseff complained generally about the magistrate's reconstruction of the record in his original written objections to the magistrate's findings, he never once objected to the magistrate's reliance on the government's brief. In fact, he condoned the use of "briefs ... to guide the Magistrate in his review of the record." Petitioner's Excerpt of Record ("E.R.") at 55. After the magistrate issued his supplemental proposed findings, which explicitly stated that he had relied on both the government's and Kosseff's appellate briefs to reconstruct the record, Kosseff made no objection. He remained silent despite the fact that two weeks elapsed between the issuance of the magistrate's supplemental findings and their adoption by the district court. He also failed to object to the use of the government's brief in his opening appellate brief, filed more than nine months after the magistrate issued his supplemental proposed findings. In fact, it was only in his motion to strike the government's supplemental excerpts of record, filed more than a year after the magistrate's supplemental findings were issued, that Kosseff first voiced his objection to the use of the brief

 4

Implicit in Kosseff's attack on the magistrate's use of the government's appellate brief is the suggestion that the record does not support the magistrate's findings. We disagree. The magistrate heard testimony from Kosseff, Talcott, Sobel, and Donner, actively taking part in the questioning of those witnesses. He also reviewed the available documentary evidence. In all, Magistrate Kronenberg did a commendable job reconstructing the record from the few available extant sources. Our discussion in Part II makes clear that this evidence provides more than ample support for his findings

 5

Petitioner's E.R. at 3-4, 10

 6

R.T. 6/13/86, afternoon session, 37-40. Talcott was particularly forceful in rejecting Kosseff's version of the trial:

This case was not revolving around the testimony of Richard Donner. Period. End of story. The allegations in the indictment, if you have read them, set forth a series of misrepresentations with [sic] Mr. Kosseff and his co-defendant were alleged to have made to prospective franchisees. That is what the gravamen of the offense was.

He was not charged with embezzlement. He was not charged with mismanagement of his business relationships in private placements. He was not charged with not taking the advice of an accountant or not taking the advice of a lawyer. He was charged, as in every mail fraud and conspiracy thereof, of making false, misleading representations to so-called victim witnesses, and that was the gravamen of the offense and that's what Mr. Kosseff and his counsel concentrated on, not Mr. Donner.

Id. at 37-38.

 7

Sobel unequivocally confirmed both Talcott's testimony about the nature of the government's case against Kosseff, id. at 60-61, and his contention that had Donner testified his testimony could very well have been materially damaging to Kosseff's defense, id. at 68-69

 8

Respondent's E.R. at 7-9

 9

Kosseff argues that because the trial record has been lost or destroyed we should exercise our equitable powers and abandon Strickland 's presumption of effective assistance of counsel in reviewing his petition. In a coram nobis proceeding, " [i]t is presumed the proceedings were correct and the burden rests on the accused to show otherwise." United States v. Morgan, 346 U.S. 502, 512 (1954). Kosseff has failed to show any irregularity. We therefore reject his suggestion and apply Strickland in full

 10

In its indictment and at trial the government alleged that Kosseff made the following fraudulent misrepresentations: (1) That UGT had been successfully and profitably operating several pilot mini-theatres; (2) that UGT had a "proven track record"; (3) that every film to be shown in a UGT mini-theatre would receive the prior approval of an existing celebrity film board; (4) that the actress Agnes Moorehead had obtained licenses for four mini-theatres; (5) that each mini-theatre would be fully automated; (6) that UGT would obtain a substantial cost savings for each franchisee by booking bilms itself; (7) that good quality 16 millimeter film prints were widely available for a large number of recent, popular films; and (8) that UGT would produce a number of new motion pictures to be shown on a first-run basis in the mini-theatres