1 United States Court of Appeals,

Fifth Circuit.

No. 95-30638.

UNITED STATES of America, Plaintiff-Appellee,

v.

Stanley J. GAUDET, Defendant-Appellant.

April 30, 1996.

Appeal from t he United States District Court for the Eastern

District of Louisiana.

Before REAVLEY, DAVIS and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Sta nley Gaudet appeals the denial of his motion under 28

U.S.C. § 2255 for vacatur of his conviction and sentence. He

argues that the court that convicted and sentenced hi m lacked

jurisdiction to do so because he had not waived his right to be

prosecuted by indictment. He also contends that he received

ineffective assistance of counsel. Concluding that Gaudet's

arguments are without merit, we affirm.

I.

Gaudet pled guilty to twenty-three counts of em bezzlement.

See United States v. Gaudet, 966 F.2d 959, 960 (5th Cir.1992)

( Gaudet I ), cert. denied, 507 U.S. 924, 11 3 S.Ct. 1294, 122

L.Ed.2d 685 (1993). Although he was validly indicted on all of

those counts, he actually pled to a superseding bill of information

for the first twenty-two, and to the original indictment for the

twenty-third. The bill of information differed from the indictment

in only two ways: (1) It did not include the twenty-third count,1 By bringing the offenses within the aegis of the

guidelines, Mosca hoped to minimize the effect that public

sentiment might have had on Gaudet's well-publicized prosecution

and sentencing. Mosca explained to Gaudet that there was no

guarantee that the district court would apply the sentencing

guidelines, but he also advised Gaudet that a sentence based on a

contrary analysis would be vulnerable to challenge on appeal.

2 which continued to survive as the sole count in the indictment;

and (2) it characterized the first twenty-two counts as "continuing

offenses."

Gaudet's retained cou nsel, Provino Mosca, had requested a

superseding bill of information for the first twenty-two counts as

part of his defense strategy, which was based on Mosca's "straddle

offense" theory: By characterizing the offenses as continuous,

Mosca hoped to argue that none of the offenses was completed until

1989, after the November 1, 1987, effective date of the sentencing

guidelines. Mosca thus hoped to require application of the

sentencing guidelines to every count, which in his judgment created

the probability of a much more lenient sentence. 1

Shortly a fter Gaudet pled guilty, Mosca withdrew from the

case; federal public defender John Craft was appointed to replace

him. At sentencing, the district court applied pre-guidelines law

to the first eighteen counts and applied the sentencing guidelines

to the remaining five counts

. See id. at 961. It also ordered

Gaudet to surrender his pension benefits in order to satisfy a

restitution award. See id. Craft did not object to any of these

actions.

On direct appeal, Gaudet argued, inter alia, that (1) the

court should have applied the gui delines to all twenty-three2 We leave the specific facts of the ineffective assistance

allegations to the legal discussion below.

3 Gaudet also argues that the government violated a purported

"plea agreement" in which the government, in return for Gaudet's

guilty plea, agreed to file a superseding bill of information

characterizing the first twenty-two counts as continuing

offenses. The government did file such a bill of information

with the understanding that Gaudet would voluntarily plead guilty

to such an information, as well as to the sole surviving count in

the indictment. Gaudet acknowledges that the government filed a

bill of information as he requested, but complains that the

government did not take the position that the sentencing

guidelines covered all of the charged counts.

There is no evidence in the record that the government

offered any consideration for Gaudet's guilty plea. Rather,

Gaudet volunteered to plead guilty—all he asked for was a

modification of the charging instrument, a request the

government granted. Gaudet's defense strategy was to have

the government make the requested changes in the bill of

3 counts, and (2) the court's order divesting him of pension benefits

was illegal under the Employe e Retirement Income Security Act of

1974 ("ERISA"). S ee id. Because Gaudet failed to object to these

alleged errors, we applied the string ent plain error standard of

review to his claims. S ee id. at 962-63. Holding that neither of

Gaudet's claimed errors met that standard, we affirmed. S ee id. at

962, 964.

Proceeding pro se, Gaudet filed this § 2255 motion for vacatur

of his conviction and sentence on the ground of ineffective

assistance of counsel

. 2 After retaining counsel for the § 2255

proceeding, Gaudet amended his motion to include a challenge to the

court's jurisdiction to accept his guilty plea, based on the ground

that he had not waived his right to be prosecuted by indictment as

required by F E D .R.C RIM .P. 7(b). The district court denied his

motion, and Gaudet appeals. 3information—without telling the government why he wanted

those changes—and to argue at sentencing that the sentencing

guidelines applied to all of the charged counts (under the

straddle offense theory). We find it somewhat ironic that

Gaudet complains of breach by the government when his

defense strategy consisted of trying to deceive the

government.

In any case, we are faced here with more than just the

absence of evidence of a plea agreement. Gaudet testified,

in open court and under oath, that there was no plea

agreement. The prosecutor also stated, in open court and

under oath, that there was no plea agreement. We therefore

do not entertain further the argument that the government

violated a purported plea agreement.

4 Gaudet's argument that he did not validly waive his right

to be prosecuted by indictment does implicate the jurisdiction of

the district court that convicted and sentenced him. See United

States v. Moore, 37 F.3d 169, 173 (5th Cir.1994). United States

v. Montgomery, 628 F.2d 414, 416 (5th Cir. Unit A 1980) (per

curiam). His Sixth Amendment claim of ineffective assistance of

counsel is, of course, constitutional in nature.

4 II.

" "Relief under 28 U.S.C. § 2255 is reserved for

transgressions of constitutional rights and for a narrow range of

injuries that could not have been raised on direct appeal and

would, if condoned, result in a complete miscarriage of justice.'

" U nited States v. Segler, 37 F.3d 1131, 1133 (5th Cir.1994)

(quoting United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.1992)

(per curiam)). When raising issues of jurisdictional or

constitutional magnitude for the first time on collateral review, 4

a defendant ordinarily must show both cause for his procedural

default and actual prejudice resulting from the error. S ee id.;

United States v. Shaid, 937 F.2d 228, 232 (5th Cir.1991) (en banc),

cert. denied, 502 U.S. 1076, 112 S.Ct. 978, 117 L.Ed.2d 141 (1992).

This cause-and-actual-prejudice standard is significantly more5 Furthermore, ineffective assistance claims ordinarily are

brought for the first time on collateral review because of the

difficulty of compiling an adequate record by the time of direct

appeal. See Pierce, 959 F.2d at 1301.

5 rigorous than even the plain error standard we applied on direct

appeal. See id.

In this case, however, Gaudet need not show cause and

prejudice, as that standard applies only when the government raises

the procedural bar in the district court. S ee United States v.

Drobny, 955 F.2d 990, 995 (5th Cir.1992). This is true even when

the government is the appellee (as was the case in D robny ). In

this case, the government did no more than object to Gaudet's

waiver-of-indictment clai m as a "last minute maneuver" coming at

the "11th hour." These remarks are too equivocal to invoke the

procedural bar. See id.

Even if the government had raised the procedural bar,

Gaudet's ineffective assistance of counsel claim would satisfy the

cause-and-prejudice standard. S ee United States v. Patten, 40 F.3d

774, 776 (5th Cir.1994) (per curiam), cert. denied,

--- U.S. ----,

115 S.Ct. 2558, 132 L.Ed.2d 811 (1995); United States v. Pierce,

959 F.2d 1297, 1301 (5th Cir.), c ert. denied, 506 U.S. 10 07, 113

S.Ct. 621, 121 L.Ed.2d 554 (1992). 5 Thus, neither of Gaudet's

claims is procedurally barred, and we proceed to the merits of his

motion.

III.

Gaudet's first claim is that the court lacked jurisdiction to6 Rule 7(b) reads:

An offense which may be punished by imprisonment for a

term exceeding one year or at hard labor may be

prosecuted by information if the defendant, after

having been advised of the nature of the charge and of

the rights of the defendant, waives in open court

prosecution by indictment.

6 accept his guilty plea. He argues that F E D .R.C RIM .P. 7(b), 6

requires an explicit waiver of indictment in open court and that

the failure to obtain an explicit waiver deprived the court of

jurisdiction to accept his plea. The government concedes that

Gaudet di d not expressly waive indictment but argues that waiver

may be implicit in a colloquy between the court and the defendant.

Other circuits have held that a waiver of indictment can be

implicit. In U

nited States v. Travis, 735 F.2d 1129, 1131-32 (9th

Cir.1984), the court inferred a waiver of indictment from the

circumstances of the case before it:

The record reveals that Travis was informed of his rights and

the charges against him in open court, he had the assistance

of counsel during plea negotiations, and he entered a guilty

plea to charges of which he had received notice by virtue of

the original indictment. Although there may have been no

explicit waiver, on the basis of the record before this court

we find that waiver was implicit in the entry of Travis'

guilty plea, and affirm.

The court also characterized the alleged defect as a " "technical

violation' of the rule, not a constitutional one." Id. at 1131.

In Ornelas v. United States, 840 F.2d 890 (11th Cir.1988), the

court also inferred a waiver of indictment from the circumstances

of the case before it:

Rule 7(b) authorizes the prosecut ion of a felony by

information if the defendant waives indictment. The Rule does

not require an express waiver; depending on the circumstances7 We offer here the Eleventh Circuit's analysis of Ornelas:

Considering the circumstances under which the appellant

chose to change his plea and what transpired at his

rearraignment, we conclude as a matter of law that he

waived prosecution by indictment in this case. During

his plea negotiations with the prosecutor, the

appellant's lawyer apparently indicated that his client

refused to plead guilty to any of the charges contained

in the existing indictment but would be willing to

plead to a less serious charge, e.g., a section 1952

offense. Such a plea could not be entertained,

however, unless the appellant waived indictment and

pled to an information; the parties were in the midst

of trial and the prosecutor simply had no time to

re-present the case to the grand jury and acquire a new

indictment. Because the appellant wanted to abort his

trial and bring his prosecution to an end, his lawyer

advised the prosecutor that the appellant would waive

indictment and plead to an information. Counsel then

agreed that the information would allege a section 1952

offense, and a tentative plea agreement was reached.

The appellant promptly accepted the deal and changed

his plea. At rearraignment, when the appellant

informed the court that he wished to plead to the

information, which superseded his pending indictment,

he effectively waived reindictment within the meaning

of Rule 7(b).

840 F.2d at 892 (footnotes omitted).

7 of the case, a waiver can be implied. All that Rule 7(b)

commands is that the defendant waive indictment and that he do

so in open court.

Id. at 892 (footnote omitted). 7 The court went on to say that "the

district court's failure to obtain fr om the appellant an express

waiver of indictment before accepting his plea to an information

constituted

... a mere "technical violation' of Rule 7(b)." I d.

(quoting Travis, 735 F.2d at 1131). The court also noted that "[a]

technical violation of Rule 7(b) is not an error that warrants

relief pursuant to 28 U.S.C. § 2255." Id.

Gaudet tries to distinguish these cases, arguing th at the8

waivers of indictment in Travis and Ornelas were implied in express

plea agreements entered in open court. We find Gaudet's argument

unpersuasive.

The reasoning of the Ninth and Eleventh Circuits did not

depend on the plea agreements in those cases. Rather, the key to

those cases was that the defendants had already been validly

indicted and had voluntarily chosen, for whatever reason, to plead

guilty to a superseding bill of information. The T ravis and

Ornelas cases stand for the proposition that, where a valid

indictment has alread y been obtained, a defendant's decision to

plead to a superseding bill of information includes an implicit

waiver of indictment that satisfies rule 7(b). We find the

reasoning of these courts persuasive, and we hereby adopt it.

Gaudet's reliance on United States v. Macklin

, 523 F.2d 193

(2d Cir.1975), is misplaced. In that case, the grand jury's

statutory term had expired before it had handed down the

i ndictment. S ee id. at 195. Thus, the defendant had not been

validly indicted. S ee id. Macklin did not involve a situation in

which the defendant knowingly and voluntarily chose to proceed by

information.

The Macklin court also found that the only possible predicate

for a waiver of indictment was the guilty plea itself. S ee id. at

196. The court stated that the guilty plea alone could not satisfy

the formal waiver requirements of rule 7(b). S ee id. The M acklin

court did not say that a waiver must be express, but only that it

must be made in open court. S ee id. Furthermore, the M acklin9

court did not opine that a waiver could never be inferred from the

c ircumstances of the case— e .g., from a colloquy in open court

between the district court and the defendant.

Unlike the defendant in Macklin, Gaudet had already been

validly indicted when he pled to a superseding bill of information.

Furthermore, the colloquy between the court and Gaudet reveals that

the court informed Gaudet that he was pleading to a superseding

bill of information as to the first twenty-two counts. Even more

probative of an implicit waiver is the stark fact that Gaudet

himself affirmatively requested the superseding bill of

information.

Gaudet places unwarra nted emphasis on the district court's

isolated and inadvertent use of the term"indictment" during the

colloquy, when the court in fact was referring to the information.

He argues now that he never understood that he was not pleading to

an indictment on all coun ts. This argument is meritless. The

d istrict court and the prosecutor used the correct terms— e .g.,

"information," "superseding bill of information," etc.—an

overwhelming percentage of the time during the colloquy. Viewed in

the context of the entire colloquy, the isolated reference to the

information as an indictment is a grossly insufficient basis from

which to argue that Gaudet believed he was pleading only to an

indictment—particularly when Gaudet himself affirmatively requested

a superseding bill of information as part of his defense strategy.

Given these facts, it would be inconceivable to hold that

Gaudet did not knowingly and voluntarily, albeit implicitly, waive10

prosecution by indictment. Accordingly, we conclude that Gaudet

did implicitly waive prosecution by indictment, and we follow the

Ninth and Eleventh Circuits in holding that an implicit waiver of

indictment satisfies rule 7(b).

IV.

Gaudet also claims that he received ineffective assistance of

counsel. Under S trickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), a defendant claiming

ineffect ive assistance must prove (1) that his attorney's

representation was deficient and (2) that he was prejudiced by the

deficiency. In order to satisfy the first prong of the W ashington

test, Gaudet must show that "counsel made errors so serious that

coun sel was not functioning as the "counsel' guaranteed the

defendant by the Sixth Amendment." I d. Because we ultimately

conclude that Gaudet has fa iled to demonstrate that Craft's

performance was deficient, we need not address the prejudice prong

of the Washington test. See id. at 697, 104 S.Ct. at 2069.

A.

Gaudet first claims that Craft was constitutionally

ineffective because he failed to object when the pre-sentence

report wa s presented and when the district court determined that

the sentencing guidelines should not apply to the first eighteen

counts in the bill of information. Gaudet argues that this

constituted an unjustifiable, mid-stream abandonment of his primary

defense strategy.

Gaudet's argument rests on the premise that his straddle11

offense theory was meritorious. To the contrary, Gaudet has not

pointed to a single decision of any court that had, by the time of

G audet's sentencing, accepted the theory that embezzlement was a

straddle offense. The one case that Gaudet does cite in support of

his straddle offense theory, United States v. Young, 955 F.2d 99,

109 (1st Cir.1992), had not been decided at the time Gaudet was

sentenced. The fact that Craft did not pursue the straddle offense

theory at sentencing can therefore hardly be said to be deficient.

Such a "failure" certainly does not lead us to conclude that Craft

"was not functioning as the "counsel' guaranteed the defendant by

the Sixth Amendment." W ashington

, 466 U.S. at 687, 104 S.Ct. at

2064.

Gaudet also argues that Craft was constitutionally ineffective

when he faile d to move to withdraw Gaudet's guilty plea after it

became apparent that the district court had not accep ted the

straddle offense theory. At the evidentiary hearing on this § 2255

motion, however, Craft stated unequivocally that he never believed

in the straddle offense theor y. He said that he proceeded as he

did— i.e., without moving for withdrawal of the guilty plea—because

he felt there was a possibility that the sentencing court would

follow the public policy embodied in the guidelines and apply the

guidelines anyway.

This is precisely the kind of strategic choice that the

Washington Court instructed us not to second-guess:

Judicial scr utiny of counsel's performance must be highly

deferential. It is all too tempting for a defendant to

second-guess counsel's assistance after conviction or adverse

sentence, and it is all too easy for a court, examining12

counsel's defense after it has proved unsuccessful, to

conclude that a particular act or omission of counsel was

unreasonable.... Because of the difficulties inherent in

makin g the evaluation [of counsel's challenged conduct], a

court must ind ulge in a strong presumption that counsel's

conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged

action "might be considered trial strategy."

Id. at 689, 104 S.Ct. at 2065 (citation omitted). Gaudet has not

overcome this presumption. Once again, he has failed to

demonstrate t hat Craft "was not functioning as the "counsel'

guaranteed the defendant by the Sixth Amendment." I d. at 687, 104

S.Ct. at 2064.

B.

Gaudet also argues that Craft was constitutionally

ineffective because he failed to object to the order requiring

Gaudet to surrender his pension benefits on the ground that the

order violated ERISA. This claim, however, lies outside the scope

of § 2255 because it is a challenge to a cash fine and does not

meet the "in custody" requirement of § 2255. See Segler, 37 F.3d

at 1136-37 (holding that Congress "meant to limit the types of

claims cognizable under § 2255 to claims relating to u nlawful

custody"). We therefore do not reach the merits of this claim.

Gaudet, therefore, has failed to demonstrate that Craft's

performance was deficient. Having concluded that Gaudet has not

satisfied the first prong of the Washington test, we need not reach

the second prong.

In sum, Gaudet implicitly waived his right to be prosecuted by

indictment, and this implicit waiver of indictment satisfied rule13

7(b). Gaudet has not demonstrated that there was ineffective

assistance of counsel. The district court thus correctly denied

his § 2255 motion, and, accordingly, we AFFIRM.