### DANIEL M. FRIEDMAN, of the United States Court of Appeals for the Federal 1 

### Circuit, sitting by designation. The Honorable James M. Rosenbaum, United States District Judge for the 2 

### District of Minnesota. UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 96-1960

VIETCHAU NGUYEN, * * Plaintiff-Appellant, * * v. * * Appeal from the United States UNITED STATES OF AMERICA, * District Court for the District * of Minnesota Defendant-Appellee. * *

Submitted: November 19, 1996 Filed: May 19, 1997

Before BEAM, FRIEDMAN , and LOKEN, Circuit Judges. 1

FRIEDMAN, Circuit Judge. The United States District Court for the District of Minnesota denied 2 the ap pellant Nguyen's motion to vacate his conviction and sentenc e following his guilty plea. Nguyen contended that his plea was involuntary

. The district court denied the motion without an evidentiary hearing. We affirm.

### 2 I.

A. Nguye n, born and raised in Vietnam, came to the United State s where he earned bachelor's and master's degrees in civil engineering at th e Univer sity of Minnesota and a Doctorate in engineering at Princeto n University. He became president of an environmental consulting firm calle d Earth, Water and Air, Incorporated ("the Company"), of which a close frien d became vice president. The Company served various governmental entities and others.

One of its clients was the Yakima In dian Nation ("Yakima"), to which the Un ited States Department of Energy had made a grant to study th e effects of locating a nuclear waste disposal facility on Yakima land. As Nguyen acknowledges in his brief, Yakima hired t he Company to advise it on the environmental eff ects of thus locating the facility. Although Yakima hired the Company, the government (specifically, the Department of Energy) provided grants to the Yakima to pay for the Company's consulting services

.

On Septe mber 21, 1990 Nguyen, the Company's vice president and th e Company were indicted in the United States Distr ict Court for the District of Minnesota in 25 counts charging wire and mail fraud, false statements to the government, transportation of stolen goods, and conspiracy t o defraud the United St ates. A number of the counts charged the defendants with submitting false vouchers to the Yakima tha t substantially overstated the amoun ts due the Company because the vouchers were based upon a n overstatement of the number of hours Company employees had worked for the Yakima.
Nguyen, represented by counsel, entered into a written plea agr eement in which he agreed to plead guilty to one count of the indictment (count IX) charging mail fraud and to a one count infor mation charging conspiracy to de fraud the United States, and the government agreed to dismiss th e remaining counts of the indictment against him. The plea agreement also stated that nothing therein "will prevent the recovery or attempted

### The Honorable Harry H. MacLaughlin, United States District Judge for the 3 

### District of Minnesota. 3 rec overy of restitution or penalties through appropriate civi l proceedi ngs." The conduct charged in count IX occurred before th e effective date of the United States Sentencing Guidelines.

After an extensive hearing on November 30, 1990, the distric t court hel d that the plea was "a completely free and voluntary and knowing

3 one" a nd accepted it. At the hearing, at which Nguyen's counsel wa s pre sent, the prosecutor read the plea agreement, and Nguyen stated tha t that was the agreement he had entered and those were the terms to which he had agreed.
In sworn testimony and by yes or no answers in response to questions by the court, Nguyen stated: (1) that he "had plenty of opportunity t o disc uss these charges with [his] attorney, to discuss with him [his ] possible defenses at trial, to discuss [his] other rights, and to discuss the idea of pleading guilty"; (2) that he was "satisfied with th e representation that [he had] received from [his] attorney" and that h e "believe[ d]" his counsel has "been a good lawyer, as far as [he is ]
conc erned"; (3) that no "force" or "threats" have "been used with o r agains t [him] to get [him] to come into court this morning and plea d guilty" and that no " promises [had] been made to [him] of any kind, other than what's been stated in this plea agreement." In respo nse to questions by his counsel, Nguyen (still under oath ) stated in yes or no answers that, with respect t o the contract involved in count IX, which had been signed by the predecessor president of th e Company , he was "aware" that the "application forms" submitted to th e government "were false in a number of ways and still were submitted" and
were "false in their representations as to the experience of certain of th e employees which were listed on those forms," and he added that "th e experie nce was not from our EWA company," and acknowledged that thei r experience was "misrepresented"; that "[t]he

### 4

application also overstated the number of employees which EWA had at the time"; that "during the course of work performed under this contract i n 1986 and 1987, there were also some hours billed to the COE [Corps o f En gineers] which were hours for which work actually had not bee n performed"; that in 1985 and 1986 there were "employees who charged time which they had worked on other contracts independent of the YIN [Yakim a Indian Nation] contra ct to the YIN contract" and that he was "aware" that two employees had "charge[d]" work to the Yakima contract that they had no t done under that contract. In connection with his yes or no answers to questions by his co unsel, Nguyen volunteered some incriminating statements. In stating that work ha d been done "on the so-called Defense Waste Project," Nguyen stated: "we kno w that it was not authorized by the U.S. Departmen t of Energy, and we billed it to the Yakima Indian Nation without the DOE authorization, sir." H e also stated that he had "order[ed]" an employee "to provide qualit y
assurance and review some of our work. And I know that it was no t authorized by the U.S. Department of Energy, and I did charge that time to the contract, sir."

Nguyen then stated, in response to a question by the court, that his "answers t o" "each questions [sic] that's been asked of you here thi s morning" have been "true and correct."

On April 9, 1991, Nguyen was given concurrent sentences of thirty

three months imprisonment on the two counts of which he was convicted

. Almost four months later, on August 5, 1991, he moved under Rule 35 of the Federal Rules of Criminal Procedure for a reduct ion of sentence, which the district court denied.

B. On August 23, 1993, Nguyen moved , pursuant to 28 U.S.C. 2255, to vacate his conviction and sentence on the ground that his guilty plea was coerced a nd involuntary. This was 32 months after he pleaded guilty o n November 30, 1990, 28 months after he had been sentenced, and 24 month s after he had moved for a reduction of sentence. Nguyen

### 5

had been released fro m confinement and his probation ended on the date he filed the 2255 motion.

A lengthy

declaration by Nguyen accompanied the motion, in which he conteste d most of the statements he had made at the plea hearing

. According to Nguyen, his plea was involuntary because (1) he had bee n denied effective assistance of counsel because his counsel was no t adequately prepared for trial, as a result of which he had been coerced an d induced to plead guilty; (2) the government had coerced his guilty plea by threatening that otherwise (a) it would file a civil liability suit agains t him and t he Company and (b) it would seek application of the Sentencin g Guidelines, with their harsher penalties, and by insisting that his guilty plea be "part of a package" under which his individual co-defendant also would plead guilty; a nd (3) the government had failed to turn over to him documents it had obtained from the Company under a search warrant, which allegedly would have established his innocence. He asserted that he was innocent of the crimes to which he had pleaded guilty.

The distr ict court denied the motion without a hearing, ruling that Nguyen's "guilty plea was knowing and well-advis ed." The court ruled that Nguyen "made no showing that he received ineffective assistance [o f counsel], or that any alleged ineffectiveness prejudiced his defense." Th e
cour t rejected his claim that the government had coerced his plea b y threat ening a civil suit or seeking application of the Sentencin g Guidelines. The court stated that Nguyen "may have felt overwhelmed b y such information, but he could not have proceeded in a knowing and informe d fashion without it." With respect to Nguyen's claim that the government withh eld exculpatory documents, the court "determine[d] that th e di sclosures would not have affected petitioner's decision whether t o plead." Finally the court "reject[ed]"

petitioner's claims of innocence. A review of the tra nscript of petitioner's change of plea hearin g rev eals that he volunteered a number o f incriminating statements under oath. At no time

### 6 duri ng or after the plea hearing did petitione r proclaimhis innocence. He now claims he lied a t the change of plea hearing, but the record shows no indication of falsehood. He would prefer that the Cou rt accept his present, unsworn statements ove r his pr evious sworn testimony at his plea hearing

. At best, he presents himself as a perjurer at hi s plea hearing. Faced with this material, the Court credits petitioner's prior sworn statements.

(Although Nguyen had completed his imprisonment and supervised parole prior to the district court's adjudication, "[t]he case is nevertheless no t moot, because the federal conviction could have collateral consequences in the future, and [Nguyen] was still in federal custody when he instituted these § 2255 proceedings," Clemmons v. United States , 721 F.2d 235, 237 n. 3 (8th Ci r. 1983); see also Leonard v. Nix , 55 F.3d 370, 372-73 (8th Cir

. 1995), since "[a] probationary term is sufficient custody to confe r jurisdiction" under § 2255. United States v. Spawr Optical Research, Inc. , 864 F.2d 1467, 1470 (9th Cir. 1988), cert. denied , 493 U.S. 809 (1989)

. See also Jones v. Cunningham , 371 U.S. 236, 243 (1963); Jones v. Jerrison , 20 F.3d 849, 852 n.2 (8th Cir. 1994).

II.

"While a guilty plea taken in open court is not invulnerable t o collateral attack in a post conviction proceeding, the defendant' s representations during the plea-taking carry a strong presumption of verit y and pose a `formidable barrier in any subsequent collateral proceedings.'" Voytik v. United States , 778 F.2d 1306, 1308 (8th Cir. 1985) (citation s omitted). Here, as shown in part I, during the plea hearing Nguyen stated that he was satisfied with his lawyer and that no threats or promises had been made to induce him to plead guilty, and admitted his guilt an d volunteered statement s that confirmed that admission. Nguyen has a heavy burden to overcome those admissions and show that his plea was involuntary

. See B lackledge v. Allison , 431 U.S. 63, 72-74 (1977); United States v

. Goodman , 590 F.2d 705 , 710 (8th Cir.), cert. denied , 440 U.S. 985 (1979).

### 7 Nguyen sought to vacate his guilty plea on three grounds: (1) tha t he had been denied effective assistance of counsel, who allegedly wa s unprepared for trial; (2) that the government had coerced him into agreein g to plead; and (3) that the government had refused to produce documents tha t allegedly would have established his innocence.

The nat ure of these allegations shows that, at the time he entere d the plea, Nguyen was aware of the bases upon which he now challenges his plea. In that situat ion one would expect that a defendant promptly would make any challenge he had to the propriety of his plea. Instead, Nguyen waited almost 32 months after his plea and 24 months after he was sentence d before challenging the voluntariness of his plea. This delay sharpl y contrasts with his fi ling of his motion to reduce sentence less than four months af ter sentence was imposed. If Nguyen then believed that he ha d been denied effective assistance of counsel and coerced into pleading and that his plea was involuntary, it is difficult t o understand why he waited to raise that issue until he had been released f rom confinement. Although Nguyen stated in his § 2255 motion that he had " only recently become aware of the significant inadequacies in [his] prior representation" and "wa s
unawa re of any basis to challenge [his] guilty plea," the grounds upo n which he seeks to vacate his plea belie those assertions.
A movant is not entitled to an evidentiary hearing on a § 2255 motion if "the motion and the files and records of the case conclusively show tha t the [movant] is entit led to no relief." Voytik , 778 F.2d at 1308. Under that standard, the district court correctly deni ed Nguyen's motion without a hearing.

A. Nguyen's argument that he received ineffective assistance o f counsel is that his lawyer was not adequately prepared for trial because he did not prepare Nguyen to testify, did not hire expert witnesses, and neglected to interview "important witnesses," and that such ineffectiv e assi stance "coerced" him to plead guilty. To sustain an ineffectiv e assist ance of counsel claim, Nguyen must show that (1) "counsel' s representation fell

### 8

below an objective st andard of reasonableness," Strickland v. Washington , 466 U.S. 668, 688 (19 84), and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedin g would have been different." Id. at 694 . Where a guilty plea is challenge d under the second prong of the Strickland test the "defendant must show tha t . . . he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart , 474 U.S. 52, 58-59 (1985) (footnote omitted);
see Voytik , 778 F.2d at 1310. In determining whether counsel's conduct wa s objecti vely reasonable, there is a "strong presumption that counsel' s conduct falls within the wide range of reasonable professional assistance. " Strickland , 466 U.S. at 689.

Nguyen's belated claim that his counsel had not represented hi m effectively is flatly contradicted by his contemporaneous statements at th e plea hearing that he was "satisfied with the representation [he had ] received" and that he "believed" that his counsel had "been a good lawyer. " The record at the ple a hearing supported those statements. A letter from his counsel stated that "many hours have been expended in discussing the essential allegations involved in your case, reviewing available business records . . . and investigating the circumstances involved to determine th e motiva tions behind those allegations." Moreover, as the district cour t pointed out, his counsel negotiated a plea agreement under which he pleade d guil ty to two counts of a twenty-five count indictment and was give n concurrent sentences of thirty-three months under each count, which "was
a good deal and is an objectively prudent plea negotiation." We agree wit h the district court th at Nguyen has not shown that he received ineffective assistance, or that any alleged ineffectiveness prejudiced his defense.

Nguyen further argues that his attorney coerced him into pleadin g guilty because he told Nguyen that he had no chance of winning, promised that Nguyen would rec eive six months, or less, of jail time if he pleaded and promised that the government would not file a civil suit if h e cooperated by pleading guilty. At the plea hearing, however, Nguyen state d that he understood that the maximum possible sentence was five years

### 9

imprisonment and a $250,000 fine, and that no promises were made "othe r than what's been stated in this plea agreement that's been read allowe d [sic] here in court." The plea agreement explicitly reserved th e government's right to file a civil suit. Nguyen 's allegations that he was coerced to plead guilty by false promises by his counsel fails to overcome the "strong presumption of verity" that attached to statements made i n "open court." Blackledge , 431 U.S. at 74; see also United States v

. Peeler , 738 F.2d 246, 251 (8th Cir.), cert. denied , 469 U.S. 936 (1984).
B. Nguyen contends that the government "coerced" him to plead guilty by threatening that otherwise it would file a civil suit against him and the Company to recover the alleged overcharges a nd seek application of the Sentencing Guidelines. These alleged threats are accurate statements of what the prosecutor might have done if Nguyen had gone to trial. "While confronting a defendant with the risk of more severe punishment clearly ma y have a `discouraging effect on the defendant's assertion of his tria l rights, the imposition of these difficult choices [is] an inevitable' -- and permissible -- `attribute of any legitimate system which tolerates and encourages the negotiation of pleas.'" Bordenkircher v. Hayes , 434 U.S. 357, 364 (1978) (quot ing Chaffin v. Stynchcombe , 412 U.S. 17, 31 (1973)).

Nguyen ar gues that he was "forced" to plead guilty because his plea bargain was a "package plea," which also involved his friend, the Company' s vic e president. "`[T]here is no constitutional right to plea bargain. ' It is the prosecutor's prerogative to offer a `p ackage deal' or no deal at all." Un ited States v. Gonzales , 65 F.3d 814, 823 (10th Cir. 1995 ) (quoting Weatherford v. Bursey , 429 U.S. 545, 561 (1977)), vacated on othe r grounds , 513 U.S. 132 (1997)); see also United States v. Wheat , 813 F.2d 1399, 1405 (9th Cir. 1987) (allowing the use of "package pleas"), aff'd on other grounds , 486 U.S. 153 (1988).

C. Nguye n's final claim is that the government wrongfully withheld exculpatory

### 10

documents, in violation of Brady v. Maryland , 373 U.S 83 (1963), that woul d have established his innocence. Those were documents the government had obtained from the Company pursuant to a search warrant.
In considering a claim that a guilty plea was involuntary because of the government's failure to disclose exculpatory material, the courts have "ev aluated the validity of the challenged plea in light of all th e attenda nt circumstances [including] the assistance of counsel, a ple a taking procedure compliant with Boykin v. Alabam a , and a factual basis for the plea." Campbell v. Marshall , 769 F.2d 314, 323-4 (6th Cir. 1985) , cert. denied , 475 U.S. 1048 (1986)). See e.g. W hite v. United States , 858 F.2d 416, 422 (8th Cir. 1988), cert. denied , 489 U.S. 1029 (1989); Fambo v. Smith , 433 F. Supp. 590 (W.D.N.Y.), aff'd , 56 5 F.2d 233 (2d Cir. 1977). Under White , one of t hose attendant circumstances is the benefit the plea gave the defendant. White , 858 F.2d at 424.

All the allegedly exculpatory material that Nguyen claims th e government withheld came from the books and records of his own company , with w hich Nguyen presumably was familiar. Moreover, Nguyen's ow n statements at the plea proceeding "fully establi sh[ed] his factual guilt." Id. at 422. Nguyen n arratively stated that he knew that a certain charge "was not authorized by the U.S. Department of Energy, and we billed it . . . without the DOE a uthorization," and that "I order [sic] the employee to . . . provide quality assurance and review some of our work. And I kno w that it was not authorized by the U.S. Department of Energy, and I di d charge that time to the contract, sir."

Consideri ng all the circumstances, the allegedly withheld allegedly exculpatory material "did not compromise either the truth or the voluntary
an d knowing nature of the plea." Campbell , 769 F.2d at 324. As th e district court held, there is no reason to believe that Nguyen's possessio n of that material would have led him to go to trial instead of pleadin g guilty.

### 11 Conclusion

The order of the district court denying Nguyen's § 2255 motion t o vacate his sentence is affirmed.

A true copy.

Attest.

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