* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

** The Honorable William F. Downes, District Judge, United States District

Court for the District of Wyoming, sitting by designation.

F I L E D

United States Court of Appeals

Tenth Circuit

SEP 3 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GERALD LEO ROGERS,

Defendant-Appellant.

No. 95-1519

(D.C. No. 94-CB-466)

(D. Colo.)

ORDER AND JUDGMENT*

Before KELLY and LOGAN, Circuit Judges, and DOWNES,** District Judge.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
1 Defendant filed his § 2255 motion on February 28, 1994. He filed a

“Supplement To Writ Of Habeas Motion” on December 30, 1994, raising a double

jeopardy issue. The district court denied the § 2255 motion on January 30, 1995,

and denied defendant’s motion for reconsideration on February 15, 1995. Neither

of those orders mentioned the “supplement,” nor did they address the double

jeopardy issue. Thereafter, defendant filed several motions regarding the double

jeopardy issue, including one asking the court to grant him summary judgment on

the double jeopardy issue or to clarify whether the orders denying § 2255 relief

and reconsideration constituted a final judgment on all issues, including double

jeopardy. The district court did not respond, and ultimately defendant filed

“Movant’s Motion And Notice Of Hearing On Motion For Reconsideration To

Conduct Hearing Concerning The Alteration Of Trial Transcripts, Or, In

Alternative, Hearing For Default Judgment On Motion To Dismiss For Reasons

Of Double Jeopardy Due To Movant’s Immediate Liberty Interest.” I R. doc 1. 

(continued...)

-2-

Defendant was charged in a thirty-count superseding indictment with mail

fraud, RICO violations, securities fraud, tax fraud, obstruction of justice, and

conspiracy in connection with his involvement with two mining tax shelters in

Canada and French Guiana. He fled the country and was eventually extradicted

from Switzerland for trial. He was convicted on ten counts of mail fraud and

three counts of securities fraud and sentenced to twenty-five years imprisonment. 

On appeal this court affirmed defendant’s conviction on nine counts and

remanded to the district court with instructions to dismiss four counts based on

collateral estoppel.

Defendant filed a motion to reverse, vacate, set aside, or correct his

sentence, pursuant to 28 U.S.C. § 2255, with respect to which the district court

denied relief.1 The appeal raises the issues of ineffective assistance of counsel,
1

(...continued)

The district court dismissed defendant’s motion for lack of merit on November 2,

1995. Defendant filed his notice of appeal on December 14, 1995. Because

defendant filed his notice of appeal within sixty days, see Fed. R. App. P. 4(a),

from the district court’s order denying his motion to dismiss based on double

jeopardy--the last issue in the § 2255 action--we hold that defendant’s appeal was

timely. 

-3-

double jeopardy, Brady violations, and transcript tampering which defendant

asserts require reversal of his convictions or a new trial. We exercise jurisdiction

under 28 U.S.C. § 1291 and affirm.

I

Defendant argues that his Sixth Amendment right to counsel was violated

because he received ineffective assistance of counsel as a result of a conflict of

interest that occurred when his attorneys, Pierce O’Donnell and Jeffery Gordon,

secretly testified before the grand jury that returned his indictment. O’Donnell

and Gordon had represented defendant on various matters, and they were his

attorneys during the grand jury investigation that resulted in defendant’s

indictment. O’Donnell testified before the grand jury, and Gordon represented

O’Donnell, remaining outside the grand jury room. After defendant’s indictment

in 1984, O’Donnell and Gordon continued to represent defendant, participating in

numerous pre-trial matters. O’Donnell and Gordon were granted leave to

withdraw as defendant’s counsel in August 1987 when defendant failed to make a
2 As the district court recognized, although O’Donnell and Gordon did not

represent defendant at trial, they enjoyed some success on pretrial motions before

they withdrew.

-4-

court appearance and fled the country. Defendant represented himself at trial

with a public defender as advisory counsel.

The Sixth Amendment right to effective assistance of conflict-free counsel,

see United States v. Cook, 45 F.3d 388, 393 (10th Cir. 1995), attaches only after

initiation of adversary proceedings against a defendant, in this case formal charge

by indictment. See Kirby v. Illinois, 406 U.S. 682, 688-89 (1972). Thus, to the

extent defendant argues that O’Donnell’s grand jury testimony and a preindictment meeting between government attorneys and O’Donnell and Gordon

violated his Sixth Amendment rights, the argument fails. Further, defendant has

not demonstrated an actual conflict of interest that adversely affected his

attorneys’ performance from the time he was charged by indictment until they

withdrew following defendant’s disappearance. See Cuyler v. Sullivan, 446 U.S.

335, 348 (1980).2 The record reveals no prejudice resulting from O’Donnell’s

and Gordon’s representation of defendant, and, therefore, defendant has not

established ineffective assistance of counsel. See Strickland v. Washington, 466

U.S. 668, 687 (1984) (requiring prejudice resulting from constitutionally deficient

performance of counsel).
3 Defendant did raise an unrelated Brady issue on direct appeal.

-5-

II

Defendant argues that his criminal prosecution after the seizure of his

assets by the Canadian government and the Seventh Elect Church through state

process violated his right to be free from double jeopardy. 

The Double Jeopardy Clause prohibits the government from punishing

twice for the same offense. See United States v. Ursery, 116 S. Ct. 2135, 2139-40

(1996). Defendant’s conclusory allegations, however, that the United States

government was responsible for the seizures by the Canadian government and for 

the state forfeitures in favor of the Seventh Elect Church, are completely

unsupported by evidence. Defendant has not shown that the United States

government was connected in any way with the alleged loss of his property, or

that such loss was the result of punitive action.

III

Defendant cites three pieces of information that he claims the government

had a duty to disclose under the doctrine announced in Brady v. Maryland, 373

U.S. 83 (1963). We agree with the district court that this claim was procedurally

barred because defendant failed to raise it on direct appeal.3

 See United States v.

Cox, 83 F.3d 336, 341 (10th Cir. 1996). Defendant does not argue cause and
-6-

prejudice for failing to raise the issue nor does he argue a fundamental

miscarriage of justice if it is not considered. Further, even if the claim were not

barred it is unmeritorious. Brady requires that the evidence be material to either

guilt or punishment; “the relevant standard of materiality does not focus on the

trial preparation, but instead on whether earlier disclosure would have created a

reasonable doubt of guilt that did not otherwise exist.” United States v. Rogers,

960 F.2d 1501, 1510-11 (10th Cir.) (quotation omitted) cert. denied, 506 U.S.

1035 (1992). Defendant’s conclusory allegations regarding the value of the

allegedly concealed evidence in impeaching witnesses do not satisfy the

materiality requirements.

IV

Defendant alleges that his trial transcript was altered. On appeal he

abandons his accusations against the trial judge and the court reporter and asserts

that the transcript was altered by unknown persons. The district court squarely

rejected defendant’s claim, finding that he “produced absolutely no evidence to

support his claim except for an affidavit signed by his co-defendant Gary

Coomber, stating that ‘to the best of [his] recollection’ certain testimony has been

omitted from the transcript.” App. at 294. We find no error in the district court’s

ruling on this issue.

V
-7-

Because we have found no error in the district court’s disposition of

defendant’s arguments, we hold that there is no cumulative error. In addition, we

reject defendant’s several requests for an evidentiary hearing. The record and

filings before us on the § 2255 motion “conclusively show that [defendant] is

entitled to no relief,” and, therefore, the district court was not required to hold an

evidentiary hearing on his claims. United States v. Simmonds, 111 F.3d 737, 746

(10th Cir. 1997).

AFFIRMED.

Entered for the Court

James K. Logan

Circuit Judge