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

for the District of Minnesota.

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No. 95-2311

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United States of America, *

*

Plaintiff - Appellee, * Appeal from the United States

* District Court for the

v. * District of Minnesota.

*

John Corcoran Wicker, *

*

Defendant - Appellant. *

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Submitted: November 14, 1995

 Filed: April 3, 1996 

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

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HANSEN, Circuit Judge.

John Corcoran Wicker appeals the district court's denial of his

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motion to withdraw a guilty plea to conspiracy to commit mail fraud in

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 one

count of conspiracy to commit mail fraud under 18 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 not charge him with violating 18 U.S.C. § 371. He is

incorrect. Count one of the superseding indictment includes a

charge under 18 U.S.C. § 371 at pages 1 and 43. The plea

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.

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guilty plea to count one of the indictment, which charged him with

violating §§ 371 and 1341 through a scheme to defraud and obtain money and

property from homeowners by means of false and fraudulent pretenses and

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

represented him well. Wicker specifically testified to the following

facts. 

In 1984, Wicker formed the company called Neltom, Inc. (later renamed

Shorwac), for which he performed the bulk of the day-to-day business. He

brought Patricia Shivers into the operation in 1985 and employed a number 3

of people at different times. In this business, Wicker would locate

homeowners who had substantial equity in their homes, but who were behind

in their mortgage payments and in danger of having their homes foreclosed

by the bank. Through a series of misrepresentations, Wicker would convince

the homeowners to convey their homes to him in the hope of recovering the

property from him later.

The misrepresentations included both false statements and omissions

of material facts that would have affected the homeowners' decisions

regarding their property. For example, Wicker failed to tell the

homeowners that he planned to put additional mortgages on the properties,

many of which mortgages exceeded the amounts necessary to redeem the

properties. He also 
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failed to tell the homeowners that he planned to use "straw parties" to

encumber the titles of the properties. Once Wicker acquired title, he

would in some cases charge the homeowners rent and use the rent money for

purposes other than paying the obligations on the property, leaving

homeowners who wanted to recover their property ultimately liable for those

amounts. In other cases, Wicker told homeowners that he would create

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

enticing people to give him title to their homes through material

misrepresentations was 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 underlying

incriminating facts.

After the plea hearing, a presentence investigation ensued and a

report was compiled. Wicker's counsel filed objections to the report, and

a sentencing hearing was scheduled. Shortly before 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 plea

hearing was insufficient to establish an adequate factual basis for his

plea. The court held an evidentiary hearing, found the factual foundation

for the plea to be adequate, and denied the motion. 

Wicker subsequently filed a motion to reconsider, this time

contending that Wicker's former counsel had labored under an actual

conflict of interest, which rendered counsel ineffective. As evidence of

a conflict, Wicker submitted copies of memoranda that his former counsel

had written to the file upon becoming concerned that Wicker was

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)).

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conflict of interest and had competently represented Wicker. The court

denied the motion to reconsider and sentenced Wicker in accordance with his

guilty plea and his plea agreement. Wicker appeals the denial of his

motion to withdraw his guilty plea. 

II.

A court may grant a motion to withdraw a guilty plea if a defendant

files such a motion before sentencing and establishes a fair and just

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 to

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 defendant

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 be

prejudiced if the court grants the motion." United States v. Nichols, 986

F.2d 1199, 1201 (8th Cir. 1993). However, "[i]f the defendant fails to

establish a fair and just reason for withdrawing the guilty plea, the trial

court need not address the remaining considerations." Id. 

We review the district court's decision to deny a motion for

withdrawal for an abuse of discretion. Yell, 18 F.3d at 582. Wicker

contends that the district 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.

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basis supporting Wicker's guilty plea and that Wicker's trial counsel

labored under a conflict of interest that led counsel to inadequately

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 basis

exists for the guilty plea. "A factual basis exists, even if the defendant

protests his innocence, if sufficient evidence is presented at the time of

the plea for the court to reasonably determine that the defendant committed

the offense." Roberson v. United States, 901 F.2d 1475, 1477 n.3 (8th

Cir. 1990). Wicker contends the record does not contain an adequate factual

foundation to support either mail fraud or conspiracy. We disagree.

 

To commit mail fraud, one must "devise[] or intend[] to devise any

scheme . . . to defraud, or to obtain money or property by means of false

or fraudulent pretenses" and use the United States mails in furtherance of

that scheme. 18 U.S.C. § 1341 (1994). Wicker first argues that the

factual basis for mail fraud is inadequate as to his intent to defraud

because the evidence does 
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not establish that he knew his activities were illegal. Wicker

misunderstands the intent required for mail fraud. "The critical inquiry

is not whether [Wicker] intended to break the law, but, rather, whether

[he] intended to defraud the [homeowners]." United States v. Costanzo, 4

F.3d 658, 664 (8th Cir. 1993). "A scheme to defraud is generally one which

is reasonably calculated to deceive persons of ordinary prudence and

comprehension." United States v. Behr, 33 F.3d 1033, 1035 (8th Cir. 1994).

To that end, Wicker admitted at his plea hearing that he used

misrepresentations of material facts to cause the 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 the

homeowners' properties. This testimony provides abundant evidence from

which the district court could conclude that Wicker intended to defraud the

homeowners and that he executed a scheme to obtain property by means of

false or fraudulent pretenses. 

Wicker's second challenge to the factual foundation to his plea is

that the testimony at his plea hearing failed to establish that Wicker used

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 his

scheme, Wicker nodded his head and answered, "We used the United States

mails, Your Honor." (Plea Tr. at 23.)

Wicker's challenge to the factual basis for his plea to conspiracy

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 district

court's questions focused only on Wicker's intent to defraud homeowners,

not his specific intent to defraud the United States. Wicker's argument

misapprehends the indictment. Section 371 prohibits two types of

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 charges 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 the 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 to

violate a federal statute, the Government must prove at least the degree

of criminal intent necessary for the substantive offense itself."); United

States v. Fairchild, 526 F.2d 8, 11 (8th Cir. 1975) ("[W]here a substantive

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 [for

conspiracy] is no less nor no more than that necessary to commit the

substantive crime."). Given the admissions made by Wicker at the plea

proceeding concerning his involvements with Ms. Shivers and others, the

factual foundation establishing a § 371 conspiracy violation was more than

adequate.

We believe the evidence at the plea hearing was sufficient for the

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 its discretion in denying Wicker's later motion to withdraw his

guilty plea on the basis of an inadequate foundation under Federal Rule of

Criminal Procedure 11.

B. Conflict of Interest

Wicker's second attack on the district court's determination that

Wicker did not establish a "fair and just reason" under Federal Rule

Criminal Procedure 32(b) to withdraw his guilty plea involves his trial

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, which

divided his attorney's loyalty between Wicker on one hand and the attorney

and the attorney's law firm on the other. Wicker argues that, because of

this alleged actual conflict of interest, he was presumably prejudiced and

his counsel was ineffective. See Strickland v. Washington, 466 U.S. 688,

692 (1984). The government responds that no conflict existed, contending

that the memoranda do not reveal a divided loyalty, but rather a

conscientious attorney who was concerned that Wicker was not being

completely forthright.

 

The district court conducted an evidentiary hearing on this issue,

during which the court heard conflicting testimony from Wicker and his

former attorney about the extent of the attorney's trial preparation

efforts and any alleged conflict. After reviewing the testimony, along

with other submitted evidence, the district court found that Wicker had

failed to prove that his counsel had actively represented conflicting

interests, that counsel had taken any action unfavorable to Wicker's

interests, or that Wicker was prejudiced by the alleged conflict of

interest. The court concluded that Wicker had entered his plea knowingly

and voluntarily and had established no fair and just reason for withdrawing

his plea. When Wicker later attempted to revisit this issue at his

sentencing hearing, the court further explained that Wicker's testimony had

simply lacked credibility.

We review a district court's determination on issues concerning

conflicts of interest for an abuse of discretion. United States v. Haren,

952 F.2d 190, 195 (8th Cir. 1992). Credibility determinations are

peculiarly within "the province of the trial court" and "virtually

unreviewable on appeal." United States v. Heath, 58 F.3d 1271, 1275 (8th

Cir.), cert. denied, 116 S. Ct. 240 (1995). 
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We have no difficulty in affirming the 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 his

practice, in and of itself creates an actual conflict of interest.

Furthermore, Wicker has cited, and we have found, no precedent supporting

this creative argument. Moreover, given the district court's negative

assessment of Wicker's credibility and the former counsel's contrasting

testimony, we find no abuse of discretion in the court's determination that

no conflict of interest existed. It follows, then, that the court did not

abuse its discretion in denying Wicker's motion to withdraw based on the

alleged conflict.

III.

Finding no abuse of discretion in the district court's denial of

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.