### The Honorable David S. Doty, United States District Judge 1 

### for the District of Minnesota. _____________ No. 95-2311

_____________ United States of America, * * Plaintiff - Appellee, * Appeal from the United States * District Court for the v. * District of Minnesota. * John Corcoran Wicker, * * Defendant - Appellant. *

_____________ Submitted: November 14, 1995 Filed: April 3, 1996

_____________ Before HANSEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

_____________ HANSEN, Circuit Judge.

Jo hn Corcoran Wicker appeals the district court's denial of hi s 1 motion to withdraw a guilty plea to conspiracy to commit mail fraud i n violation of 18 U.S.C. § 371 and 18 U.S.C. § 1341. We affirm.

I.

Wicker was charged in a 23-count superseding indictment with on e count of conspiracy to commit mail fraud under 1 8 U.S.C. § 371 and twentytwo counts of mail fraud under 18 U.S.C. § 1341. At his plea hearing , pursuant to a written plea agreement, he entered a

### Wicker asserts that count one of his superseding indictment 2 

### does n ot charge him with violating 18 U.S.C. § 371. He i s incorrect. Count one of the superseding indictment includes a charge under 18 U.S.C. § 371 at pages 1 and 43. The ple a transcript clearly shows him pleading to a conspiracy charge . (Plea Tr. at 5, 6, 13, 20-21.) Shivers entered a guilty plea to an information charging 3 

### her with conspiracy to defraud the United States (Internal Revenue Service) under 18 U.S.C. § 371, one day before Wicker pleaded guilty to count one of the superseding indictment.
2 gui lty plea to count one of the indictment, which charged him wit h violating §§ 371 and 1341 through a scheme to de fraud and obtain money and pro perty from homeowners by means of false and fraudulent pretenses an d using the United States mails in furtherance of that scheme. At his plea 2 hearing, Wicker stated he understood the nature of the charges against him , that he was volitionally entering his plea, and that his trial counsel had repres ented him well. Wicker specifically testified to the followin g facts.
In 1984, Wicker formed the company called Neltom, Inc. (later r enamed Shorwac), for which h e performed the bulk of the day-to-day business. He brought Patricia Shivers into the o peration in 1985 and employed a number 3 of p eople at different times. In this business, Wicker would locat e homeowners who had su bstantial equity in their homes, but who were behind in their mortgage pay ments and in danger of having their homes foreclosed by the bank. Through a series of misrepresentations, Wicker would convinc e the homeowners to con vey their homes to him in the hope of recovering the property from him later.

The misre presentations included both false statements and omissions of mat erial facts that would have affected the homeowners' decision s regar ding their property. For example, Wicker failed to tell th e homeowners that he pl anned to put additional mortgages on the properties, many of which mortgages exceeded the amounts necessary to redeem th e properties. He also

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failed to tell the homeowners that he planned to use "straw parties" t o
encum ber the titles of the properties. Once Wicker acquired title, h e would in some cases c harge the homeowners rent and use the rent money for purpos es other than paying the obligations on the property, leavin g homeowners who wanted to recover their property ultimately liable for thos e amounts. In other cases, Wicker told homeowners that he would creat e contracts for deed on the properties; he failed to tell those homeowners he would sell the contracts for deed, reaping a profit for himself , Shivers, or other investors to whom Wicker owed money. This artifice of entic ing people to give him title to their homes through materia l misrepresentations wa s driven, in large part, by Wicker's desire to wring additional funds out of the homeowners' properties. Wicker's signed plea agreement also contained a similar recitation of the underlyin g incriminating facts.

After the plea hearing, a presentence investigation ensued and a report was compiled. Wicker's counsel filed obj ections to the report, and a sentencing hearing was scheduled. Shortly bef ore the scheduled hearing, Wicker obtained new counsel and filed a motion to withdraw his guilty plea , asserting, among other things, that the evidence presented at his ple a hea ring was insufficient to establish an adequate factual basis for hi s plea. The court held an evidentiary hearing, fo und the factual foundation for the plea to be adequate, and denied the motion.

Wicker subsequently filed a motion to reconsider, this tim e conten ding that Wicker's former counsel had labored under an actua l conflict of interest, which rendered counsel ineffective. As evidence of

a conflict, Wicker submitted copies of memoranda that his former counsel had writt en to the file upon becoming concerned that Wicker wa s contemplating a malpractice suit against counsel . The district court held another evidentiary hearing. After receiving testimony from both Wicker and his former counsel, the court determined that the former counsel had not labored under a

### Subdivision (e) under the 1994 amendment to the Federal 4 

### Rules of Criminal Procedure was formerly subdivision (d). The new provision is essentially the same, except for minor stylistic changes. Fed. R. Crim. P. 32 (commentary to the 1994 amend., subd. (e)).
4 con flict of interest and had competently represented Wicker. The cour t denied the motion to reconsider and sentenced Wicker in accordance with hi s gui lty plea and his plea agreement. Wicker appeals the denial of hi s motion to withdraw his guilty plea.

II.

A court m ay grant a motion to withdraw a guilty plea if a defendant files such a motion before sentencing and establishes a fair and jus t reason for withdrawing the plea. Fed. R. Crim. P. 32(e). The defendant 4 bears the burden of establishing a fair and just reason. United States v. Yell , 18 F.3d 581, 582 (8th Cir. 1994). "[T]he `fair and just' standard is a liberal standard, [but] it does not create an automatic right t o withdraw a plea." United States v. Kelly , 18 F.3d 612, 618 (8th Cir

. 1994). Besides considering whether the defendant has established a fair and just reason, a district court must also consider "whether the defendan t asserts his innocence of the charge, the length of time between the guilty plea and the motion to withdraw it, and whether the government will b e prejudiced if the court grants the motion." Uni ted States v. Nichols , 986 F.2d 1199 , 1201 (8th Cir. 1993). However, "[i]f the defendant fails t o establish a fair and just reason for withdrawing the guilty plea, the tria l court need not address the remaining considerations." Id.

We review the district court's decision to deny a motion fo r withdrawa l for an abuse of discretion. Yell , 18 F.3d at 582. Wicke r contends that the dis trict court abused its discretion by failing to find a "fair and just reason." Specifically, Wicker argues that the transcript does not contain an adequate factual

### After Wicker's counsel had filed a brief with this court, 5 

### Wicker moved to file a pro se supplemental brief with numerous evidentiary exhibits, some of which we believe were stricken from the record below by the district court in its order of May 30, 1995. As a matter of Eighth Circuit policy, we ordinarily do not accept pro se briefs from a party who is represented by counsel. United States v. Blum , 65 F.3d 1436, 1443 n.2 (8th Cir. 1995), cert. denied , 1995 WL 761577 (U.S. Jan. 22, 1996); United States v. Marx , 991 F.2d 1369, 1375 (8th Cir.), cert. denied , 114 S. Ct. 618 (1993). Even though Wicker's retained counsel has rendered able representation in this case, we have gratuitously examined the tendered pro se filings . We find they set forth no material of arguable merit not already covered by retained counsel's argument and brief. The pro se motion to formally file the same is denied. The clerk shall retain the pro se brief as tendered so a record is made of what we have in fact reviewed.
5 basis supporting Wicker's guilty plea and that Wicker's trial counse l labored under a conflict of interest that led counsel to inadequatel y advise Wicker. We address these arguments in turn. 5

A. Factual Plea Foundation

Under Rule 11(f) of the Federal Rules of Criminal Procedure, a court must make an inquiry sufficient to satisfy itself that a factual basi s exists for the guilty plea. "A factual basis exists, even if the defendan t protests his innocence, if sufficient evidence i s presented at the time of the plea for the court to reasonably determine that the defendant committe d the off ense." Roberson v. United States , 901 F.2d 1475, 1477 n.3 (8t h Cir. 1990). Wicker contends the record does not contain an adequate factua l foundation to support either mail fraud or conspiracy. We disagree.

To comm it mail fraud, one must "devise[] or intend[] to devise an y scheme . . . to defra ud, or to obtain money or property by means of false or fraudulent pretenses" and use the United Stat es mails in furtherance of that schem e. 18 U.S.C. § 1341 (1994). Wicker first argues that th e factual basis for mail fraud is inadequate as to his intent to defrau d because the evidence does

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not estab lish that he knew his activities were illegal. Wicke r misunderstands the in tent required for mail fraud. "The critical inquiry is not whether [Wicker] intended to break the law, but, rather, whethe r [he] intended to defr aud the [homeowners]." United States v. Costanzo , 4 F.3d 658, 664 (8th Cir. 1993). "A scheme to defraud is generally one whic h is rea sonably calculated to deceive persons of ordinary prudence an d comprehension." United States v. Behr , 33 F.3d 1033, 1035 (8th Cir. 1994)

. To tha t end, Wicker admitted at his plea hearing that he use d misrepresentations of material facts to cause th e homeowners to turn their properties over to him. He further conceded that his misrepresentations
were driven in large part by his desire to draw funds out of th e homeowners' properties. This testimony provides abundant evidence fro m which the district court could conclude that Wicker intended to defraud th e homeowner s and that he executed a scheme to obtain property by means o f false or fraudulent pretenses.

Wicker's second challenge to the factual foundation to his plea i s that the testimony at his plea hearing failed to establish that Wicker use d the United States mail in furtherance of executing his scheme. The record , however, indicates otherwise. When the district court asked at the plea hearing whether Wicker had used the United States mails in carrying out hi s scheme, Wicker nodded his head and answered, "We used the United State s mails, Your Honor." (Plea Tr. at 23.) Wicker's challenge to the factual basis for his plea to conspirac y to commit mail fraud under 18 U.S.C. § 371 also fails. Wicker asserts his plea was inadequate because the thrust of the government's and the distric t court's questions focused only on Wicker's intent to defraud homeowners, not his specific intent to defraud the United States. Wicker's argumen t misapp rehends the indictment. Section 371 prohibits two types o f conspiracy: conspiring "to commit any offense against the United States" and conspiring "to defraud the United States." 18 U.S.C. § 371 (1994).

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Wicker's indictment c harges him not with conspiring to defraud the United States, but with conspiring to commit an offense against the United States , namely mail fraud. Under the conspiracy charge in this case, the intent the government must establish at a minimum is th e necessary intent for the substantive crime, here mail fraud, which, as explained above, was amply demonstrated. See United States v. Feola , 420 U .S. 671, 687 (1975) ("[I]n order to sustain a judgment of conviction on a charge of conspiracy t o violate a federal statute, the Government must prove at least the degree of criminal intent necessary for the substantive offense itself."); Unite d States v. Fairchild , 526 F.2d 8, 11 (8th Cir. 1975) ("[W]here a substantiv e offense embodies only a requirement of mens rea as to each of its elements , the general federal conspiracy statute requires no more.") (quoting Feola , 420 U.S. at 694); United States v. Friedman , 506 F.2d 511, 516 (8th Cir. 1974 ), cert. denied , 421 U.S. 1004 (1975) ("The required intent [fo r conspi racy] is no less nor no more than that necessary to commit th e subst antive crime."). Given the admissions made by Wicker at the ple a procee ding concerning his involvements with Ms. Shivers and others, th e factual foundation establishing a § 371 conspira cy violation was more than adequate.

We beli eve the evidence at the plea hearing was sufficient for th e district court to reasonably determine that the defendant violated both 18 U.S.C. § 1341 and 18 U.S.C. § 371. The district court therefore did not abuse i ts discretion in denying Wicker's later motion to withdraw hi s guilty plea on the basis of an inadequate founda tion under Federal Rule of Criminal Procedure 11.

B. Conflict of Interest

Wicke r's second attack on the district court's determination tha t Wick er did not establish a "fair and just reason" under Federal Rul e Cri minal Procedure 32(b) to withdraw his guilty plea involves his tria l counsel's alleged conflict of interest. Wicker

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points to memoranda his attorney wrote to the file as evidence of a conflict. Wicker asserts the memoranda reveal a fear of malpractice, whic h divided his attorney's loyalty between Wicker on one hand and the attorney and the attorney's la w firm on the other. Wicker argues that, because of this alleged actual conflict of interest, he was presumably prejudiced and his counsel was ineff ective. See Strickland v. Washington , 466 U.S. 688, 692 (1984). The gove rnment responds that no conflict existed, contending th at the memoranda do not reveal a divided loyalty, but rather a consci entious attorney who was concerned that Wicker was not bein g completely forthright.

The district court conducted an evidentiary hearing on this issue , during which the court heard conflicting testimony from Wicker and hi s former attorney about the extent of the attorney's trial preparatio n eff orts and any alleged conflict. After reviewing the testimony, alon g wit h other submitted evidence, the district court found that Wicker ha d failed to prove that his counsel had actively represented conflictin g intere sts, that counsel had taken any action unfavorable to Wicker' s interests, or that Wicker was prejudiced by the alleged conflict o f interest. The court concluded that Wicker had entered his plea knowingly and voluntarily and had established no fair and just reason for withdrawin g his plea. When Wicker later attempted to revisit this issue at hi s sentencing hearing, the court further explained that Wicker's testimony ha d simply lacked credibility.

We review a district court's determination on issues concernin g conflicts of interest for an abuse of discretion

. United States v. Haren , 952 F.2d 190, 195 (8th Cir. 1992). Credibility determinations ar e peculi arly within "the province of the trial court" and "virtuall y unreviewable on appea l." United States v. Heath , 58 F.3d 1271, 1275 (8th Cir.), cert. denied , 116 S. Ct. 240 (1995).

### 9 We have no difficulty in affirming t he district court on this issue. We are unpersuaded by Wicker's theory that an attorney's act of drafting memoranda to the file, born out of a concern for the integrity of hi s practice , in and of itself creates an actual conflict of interest

. Furthermore, Wicker h as cited, and we have found, no precedent supporting this c reative argument. Moreover, given the district court's negativ e assessment of Wicker's credibility and the former counsel's contrastin g testimony, we find no abuse of discretion in the court's determination tha t no conflict of interest existed. It follows, th en, that the court did not abuse its discretion in denying Wicker's motion to withdraw based on the alleged conflict.

III.

Fi nding no abuse of discretion in the district court's denial o f Wicker's motion to withdraw his guilty plea, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.