* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable William F. Downes, District Judge, Un ited States District Court for the District of Wyoming, sitting by desig nation. 

## 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, th is 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 c ase is therefore ordered submitted without oral argument.1 Defendant filed his § 2255 motion on February 28, 1 994. He filed a

“Supplement To Writ Of Habeas Motion” on December 3 0, 1994, raising a double jeopardy issue. The district court denied the § 22 55 motion on January 30, 1995, and denied defendant’s motion for reconsideration o n February 15, 1995. Neither of those orders mentioned the “supplement,” nor did they address the double jeopardy issue. Thereafter, defendant filed severa l motions regarding the double jeopardy issue, including one asking the court to g rant 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 Fo r 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 te n counts of mail fraud and three counts of securities fraud and sentenced to twenty-five years imprisonment. On appeal this court affirmed defendant’s convictio n 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 as ide, or correct his sentence, pursuant to 28 U.S.C. § 2255, with respec t to which the district court denied relief. 1 The appeal raises the issues of ineffective assi stance of counsel,1 (...continued)

The district court dismissed defendant’s motion forlack of merit on November 2, 1995. Defendant filed his notice of appeal on Dece mber 14, 1995. Because defendant filed his notice of appeal within sixty d ays, 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 h old that defendant’s appeal was timely. -3- double jeopardy, Bradyviolations, and transcript tampering which defenda nt asserts require reversal of his convictions or a ne w 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 couns el 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 retur ned 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 j ury, 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 w ere granted leave to withdraw as defendant’s counsel in August 1987 whendefendant failed to make a2 As the district court recognized, although O’Donnel l and Gordon did not

represent defendant at trial, they enjoyed some suc cess on pretrial motions before they withdrew.

-4- court appearance and fled the country. Defendant r epresented himself at trial with a public defender as advisory counsel. The Sixth Amendment right to effective assistance o f 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 defen dant, 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 jurytestimony and a preindictment meeting between government attorneys and O’Donnell and Gordon violated his Sixth Amendment rights, the argument f ails. 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, ther efore, 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 Bradyissue on direct appeal. -5- II Defendant argues that his criminal prosecution afte r the seizure of his assets by the Canadian government and the Seventh E lect Church through state process violated his right to be free from double j eopardy. The Double Jeopardy Clause prohibits the governmentfrom punishing twice for the same offense. See United States v. Ursery , 116 S. Ct. 2135, 2139-40 (1996). Defendant’s conclusory allegations, howeve r, that the United States government was responsible for the seizures by the Canadian government and for the state forfeitures in favor of the Seventh ElectChurch, are completely unsupported by evidence. Defendant has not shown t hat the United States government was connected in any way with the allege d 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 t hat this claim was procedurally barred because defendant failed to raise it on dire ct appeal. 3 See United States v. Cox , 83 F.3d 336, 341 (10th Cir. 1996). Defendant doe s not argue cause and-6-

prejudice for failing to raise the issue nor does h e argue a fundamental miscarriage of justice if it is not considered. Fu rther, even if the claim were not barred it is unmeritorious. Bradyrequires that the evidence be material to either guilt or punishment; “the relevant standard of mate riality does not focus on the trial preparation, but instead on whether earlier d isclosure would have created a reasonable doubt of guilt that did not otherwise ex ist.” United States v. Rogers , 960 F.2d 1501, 1510-11 (10th Cir.) (quotation omitt ed) cert. denied , 506 U.S. 1035 (1992). Defendant’s conclusory allegations re garding the value of the allegedly concealed evidence in impeaching witnesse s do not satisfy the materiality requirements.

IV Defendant alleges that his trial transcript was alt ered. On appeal he abandons his accusations against the trial judge an d the court reporter and asserts that the transcript was altered by unknown persons. The district court squarely rejected defendant’s claim, finding that he “produc ed 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] recolle ction’ certain testimony has been omitted from the transcript.” App. at 294. We fin d 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 cum ulative error. In addition, we reject defendant’s several requests for an evidenti ary hearing. The record and filings before us on the § 2255 motion “conclusivel y show that [defendant] is entitled to no relief,” and, therefore, the distric t 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