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 appellant Nguyen's motion to vacate his conviction and sentence

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. Nguyen, born and raised in Vietnam, came to the United States

where he earned bachelor's and master's degrees in civil engineering at the

University of Minnesota and a Doctorate in engineering at Princeton

University. He became president of an environmental consulting firm called

Earth, Water and Air, Incorporated ("the Company"), of which a close friend

became vice president. The Company served various governmental entities

and others. 

One of its clients was the Yakima Indian Nation ("Yakima"), to which

the United States Department of Energy had made a grant to study the

effects of locating a nuclear waste disposal facility on Yakima land. As

Nguyen acknowledges in his brief, Yakima hired the Company to advise it on

the environmental effects 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 September 21, 1990 Nguyen, the Company's vice president and the

Company were indicted in the United States District 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 to

defraud the United States. A number of the counts charged the defendants

with submitting false vouchers to the Yakima that substantially overstated

the amounts due the Company because the vouchers were based upon an

overstatement of the number of hours Company employees had worked for the

Yakima.

Nguyen, represented by counsel, entered into a written plea agreement

in which he agreed to plead guilty to one count of the indictment (count

IX) charging mail fraud and to a one count information charging conspiracy

to defraud the United States, and the government agreed to dismiss the

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

recovery of restitution or penalties through appropriate civil

proceedings." The conduct charged in count IX occurred before the

effective date of the United States Sentencing Guidelines. 

After an extensive hearing on November 30, 1990, the district

court held that the plea was "a completely free and voluntary and knowing 3

one" and accepted it. At the hearing, at which Nguyen's counsel was

present, the prosecutor read the plea agreement, and Nguyen stated that

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 to

discuss 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 the

representation that [he had] received from [his] attorney" and that he

"believe[d]" his counsel has "been a good lawyer, as far as [he is]

concerned"; (3) that no "force" or "threats" have "been used with or

against [him] to get [him] to come into court this morning and plead

guilty" and that no "promises [had] been made to [him] of any kind, other

than what's been stated in this plea agreement." 

In response to questions by his counsel, Nguyen (still under oath)

stated in yes or no answers that, with respect to the contract involved in

count IX, which had been signed by the predecessor president of the

Company, he was "aware" that the "application forms" submitted to the

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 the

employees which were listed on those forms," and he added that "the

experience was not from our EWA company," and acknowledged that their

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 in

1986 and 1987, there were also some hours billed to the COE [Corps of

Engineers] which were hours for which work actually had not been

performed"; that in 1985 and 1986 there were "employees who charged time

which they had worked on other contracts independent of the YIN [Yakima

Indian Nation] contract to the YIN contract" and that he was "aware" that

two employees had "charge[d]" work to the Yakima contract that they had not

done under that contract. 

In connection with his yes or no answers to questions by his counsel,

Nguyen volunteered some incriminating statements. In stating that work had

been done "on the so-called Defense Waste Project," Nguyen stated: "we know

that it was not authorized by the U.S. Department of Energy, and we billed

it to the Yakima Indian Nation without the DOE authorization, sir." He

also stated that he had "order[ed]" an employee "to provide quality

assurance and review some of our work. And I know that it was not

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 to" "each questions [sic] that's been asked of you here this

morning" have been "true and correct." 

On April 9, 1991, Nguyen was given concurrent sentences of thirtythree 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 reduction 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 and involuntary. This was 32 months after he pleaded guilty on

November 30, 1990, 28 months after he had been sentenced, and 24 months

after he had moved for a reduction of sentence. Nguyen
5

had been released from confinement and his probation ended on the date he

filed the 2255 motion. 

A lengthy declaration by Nguyen accompanied the motion, in which he

contested most of the statements he had made at the plea hearing.

According to Nguyen, his plea was involuntary because (1) he had been

denied effective assistance of counsel because his counsel was not

adequately prepared for trial, as a result of which he had been coerced and

induced to plead guilty; (2) the government had coerced his guilty plea by

threatening that otherwise (a) it would file a civil liability suit against

him and the Company and (b) it would seek application of the Sentencing

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; and (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 district court denied the motion without a hearing, ruling that

Nguyen's "guilty plea was knowing and well-advised." The court ruled that

Nguyen "made no showing that he received ineffective assistance [of

counsel], or that any alleged ineffectiveness prejudiced his defense." The

court rejected his claim that the government had coerced his plea by

threatening a civil suit or seeking application of the Sentencing

Guidelines. The court stated that Nguyen "may have felt overwhelmed by

such information, but he could not have proceeded in a knowing and informed

fashion without it." With respect to Nguyen's claim that the government

withheld exculpatory documents, the court "determine[d] that the

disclosures would not have affected petitioner's decision whether to

plead." Finally the court "reject[ed]" 

petitioner's claims of innocence. A review of the

transcript of petitioner's change of plea hearing

reveals that he volunteered a number of

incriminating statements under oath. At no time
6

during or after the plea hearing did petitioner

proclaim his innocence. He now claims he lied at

the change of plea hearing, but the record shows no

indication of falsehood. He would prefer that the

Court accept his present, unsworn statements over

his previous sworn testimony at his plea hearing.

At best, he presents himself as a perjurer at his

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 not

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 Cir. 1983); see also Leonard v. Nix, 55 F.3d 370, 372-73 (8th Cir.

1995), since "[a] probationary term is sufficient custody to confer

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 to

collateral attack in a post conviction proceeding, the defendant's

representations during the plea-taking carry a strong presumption of verity

and pose a `formidable barrier in any subsequent collateral proceedings.'"

Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985) (citations

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 and

volunteered statements that confirmed that admission. Nguyen has a heavy

burden to overcome those admissions and show that his plea was involuntary.

See Blackledge 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) that

he had been denied effective assistance of counsel, who allegedly was

unprepared for trial; (2) that the government had coerced him into agreeing

to plead; and (3) that the government had refused to produce documents that

allegedly would have established his innocence.

The nature of these allegations shows that, at the time he entered

the plea, Nguyen was aware of the bases upon which he now challenges his

plea. In that situation 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 sentenced

before challenging the voluntariness of his plea. This delay sharply

contrasts with his filing of his motion to reduce sentence less than four

months after sentence was imposed. If Nguyen then believed that he had

been denied effective assistance of counsel and coerced into pleading and

that his plea was involuntary, it is difficult to understand why he waited

to raise that issue until he had been released from confinement. Although

Nguyen stated in his § 2255 motion that he had "only recently become aware

of the significant inadequacies in [his] prior representation" and "was

unaware of any basis to challenge [his] guilty plea," the grounds upon

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 that

the [movant] is entitled to no relief." Voytik, 778 F.2d at 1308. Under

that standard, the district court correctly denied Nguyen's motion without

a hearing.

A. Nguyen's argument that he received ineffective assistance of

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 ineffective

assistance "coerced" him to plead guilty. To sustain an ineffective

assistance of counsel claim, Nguyen must show that (1) "counsel's

representation fell
8

below an objective standard of reasonableness," Strickland v. Washington,

466 U.S. 668, 688 (1984), and (2) that "there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding

would have been different." Id. at 694 . Where a guilty plea is challenged

under the second prong of the Strickland test the "defendant must show that

. . . 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 was

objectively 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 him

effectively is flatly contradicted by his contemporaneous statements at the

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 plea 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 the

motivations behind those allegations." Moreover, as the district court

pointed out, his counsel negotiated a plea agreement under which he pleaded

guilty to two counts of a twenty-five count indictment and was given

concurrent sentences of thirty-three months under each count, which "was

a good deal and is an objectively prudent plea negotiation." We agree with

the district court that 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 pleading

guilty because he told Nguyen that he had no chance of winning, promised

that Nguyen would receive six months, or less, of jail time if he pleaded

and promised that the government would not file a civil suit if he

cooperated by pleading guilty. At the plea hearing, however, Nguyen stated

that he understood that the maximum possible sentence was five years
9

imprisonment and a $250,000 fine, and that no promises were made "other

than what's been stated in this plea agreement that's been read allowed

[sic] here in court." The plea agreement explicitly reserved the

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 in

"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 and 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 may

have a `discouraging effect on the defendant's assertion of his trial

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) (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 31 (1973)).

Nguyen argues that he was "forced" to plead guilty because his plea

bargain was a "package plea," which also involved his friend, the Company's

vice president. "`[T]here is no constitutional right to plea bargain.'

It is the prosecutor's prerogative to offer a `package deal' or no deal at

all." United States v. Gonzales, 65 F.3d 814, 823 (10th Cir. 1995)

(quoting Weatherford v. Bursey, 429 U.S. 545, 561 (1977)), vacated on other

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. Nguyen's final claim is that the government wrongfully withheld

exculpatory
10

documents, in violation of Brady v. Maryland, 373 U.S 83 (1963), that would

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

"evaluated the validity of the challenged plea in light of all the

attendant circumstances [including] the assistance of counsel, a plea

taking procedure compliant with Boykin v. Alabama, 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. White 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, 565 F.2d 233 (2d Cir. 1977).

Under White, one of those attendant circumstances is the benefit the plea

gave the defendant. White, 858 F.2d at 424.

All the allegedly exculpatory material that Nguyen claims the

government withheld came from the books and records of his own company,

with which Nguyen presumably was familiar. Moreover, Nguyen's own

statements at the plea proceeding "fully establish[ed] his factual guilt."

Id. at 422. Nguyen narratively 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 authorization," and that "I order [sic] the employee

to . . . provide quality assurance and review some of our work. And I know

that it was not authorized by the U.S. Department of Energy, and I did

charge that time to the contract, sir."

Considering all the circumstances, the allegedly withheld allegedly

exculpatory material "did not compromise either the truth or the voluntary

and knowing nature of the plea." Campbell, 769 F.2d at 324. As the

district court held, there is no reason to believe that Nguyen's possession

of that material would have led him to go to trial instead of pleading

guilty.
11

Conclusion

The order of the district court denying Nguyen's § 2255 motion to

vacate his sentence is affirmed.

A true copy.

Attest.

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