Trainor v. USA 0 7-CV-352-JD 07/24/08

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

William P. Trainor

v. Civil No. 07-cv-352-JD Opinion No.

United States of America

O R D E R

William Trainor, proceeding pro se, has moved under

for collateral relief from his convictions and

sentence in this court for conspiracy to commit wire fraud under

and multiple counts of wire fraud under

. The convictions, which arose out of Trainer's fraudulent

dealings in two pieces of real estate in Lebanon, Maine, were

upheld on appeal. See United States v. Trainor.

(1st

Cir. 2007). For the foregoing reasons, the court denies

Trainer's motion without an evidentiary hearing.

Background

The facts adduced at Trainer's trial are set forth in

detail in the opinion by the court of appeals,

,

and therefore will be repeated here only as necessary to resolve

Trainer's present claims. Trainor and two co-defendants, John DesMarais and Donald Smith, were indicted for fraudulently

obtaining two loans, one to finance DesMarais's purchase of a

parcel held by Trainer's wife, at 12 Trainor Road, and the other

to finance the construction of a house on a parcel transferred to

Smith by Trainor, at 16 Trainor Road. All three men were

charged, in one count, with an overarching conspiracy to defraud;

Trainor and DesMarais were charged with three counts of wire

fraud for their role in obtaining the loan on 12 Trainor Road;

and all three men were charged with four counts of wire fraud for

their role in obtaining the loan on 16 Trainor Road.1 DesMarais

and Smith each pled guilty to one of the wire fraud counts before

trial, where they testified against Trainor. At trial, Trainor

was represented by two experienced criminal defense attorneys who

had been appointed by the court.

Trainer's collateral attack on his convictions focuses

largely on those for wire fraud arising out of his dealings in 16

Trainor Road.2 Before securing the construction loan on that

1Two of these counts, numbered seven and eight in the indictment, were dismissed at the close of the government's case at trial due to insufficient evidence to sustain a conviction. See Fed. R. Grim. P. 29(a).

2In one of his allegations of perjury, Trainor claims that Leslie Ogden, who served as the title company's closing attorney on the mortgage loan for 12 Trainor Road, testified falsely "that she never looked at the $75,000 check presented by" Trainor at the closing as part of DesMarais's down payment on the property.

2 parcel, Trainor had arranged for its transfer to a Las Vegas

attorney, James Lee, for what he described as the purpose of

settling a debt Lee was owed by one of his clients, Robert Jones,

who was in turn owed money by Trainor. Jones, who was called as

a witness for the defense, confirmed this understanding,

testifying that he had approached Trainor for help with the debt

to Lee because Trainor "had come to owe [Jones] quite a little

bit of money over the years," about several million dollars.

But Jones was not asked about the circumstances giving rise

to Trainer's debt to him due to defense counsel's concern, shared

by the court, that doing so would open the door to evidence of

Trainer's prior bad acts. These included Trainer's inducing

Jones to invest in a company controlled in part by Trainor,

diverting those monies to his own personal benefit, then failing

to pay tax on that income--all of which Trainor admitted to doing

when he pled guilty to tax evasion in another case after being

convicted in this one. See Plea Agreement, United States v.

The truth, Trainor says, is that Ogden herself asked him "if he had a check on his person" after he had explained that DesMarais had been unable to obtain all of the money needed for the down payment, and that the lender's representative gave his assent. Trainor provides no support at all for this version of events. Indeed, the only evidence he does reference, Ogden's statement to federal investigators, is consistent with her trial testimony.

3 Trainor, No. 01-6215-CR (S.D. Fla. Apr. 14, 2005).3 Lee did

testify, on cross-examination by defense counsel, that he did not

believe that Trainor, who owed Jones "in excess of seven million

dollars," would be realizing any profit from the transfer of 16

Trainor Road, "particularly because of the way that Mr. Trainor

had got the seven million dollars."4 But Lee was never asked to

elaborate on this comment, and it was not brought up again,

either in the testimony of any other witness or counsel's

arguments to the jury.

To effect the transfer of 16 Trainor Road to Lee, Trainor

prepared a warranty deed conveying the property from his son, the

record owner, to Lee's law practice in fee simple. After a title

company in Portsmouth, New Hampshire, placed this instrument on

file with the registry of deeds, the company sent Trainor a fax

3Trainor subsequently moved to vacate this conviction, but the motion was denied by the district court, which also denied him a certificate of appealability. The Court of Appeals for the Eleventh Circuit followed suit; the Supreme Court then denied Trainer's petition for a writ of certiorari.

4Lee and Jones testified as to different understandings of the fate of any proceeds from the eventual sale of 16 Trainor Road. Lee, referencing an undated letter agreement with Jones, understood that the two of them would split those profits, with Lee's portion going to a retainer to fund Jones's future legal fees. But Jones, referencing an e-mail he said he sent to Trainor with Lee's assent, understood that Jones and Trainor would split the profits. Both the letter and the e-mail were put in evidence.

4 notifying him that this had occurred. This transmission was the

basis of count five of the indictment, one of the wire fraud

charges on which Trainor was convicted.

Trainor subsequently prepared a "Lien Certificate," which he

alone signed in his purported capacity as "agent for the

parties," attesting to "funding conditions" on the transfer of

the property to Lee, including a payment to Donald Walden, whom

would later be falsely portrayed as the source of financing for

Smith's purchase of 16 Trainor Road. Lee testified that he did

not learn of either the "Lien Certificate" or the alleged

obligations it referenced until some time after taking title to

16 Trainor Road, when the certificate was discovered on file in

the registry amid Lee's attempts to sell the property.

By that time, Trainor had prepared another document entitled

"Release of Lien" that recited the same "funding obligations" as

the "Lien Certificate," adding that because they "were not paid

in accordance with the agreement between the parties . . . the

deed is rescinded in accordance with the agreement between the

parties and deeded back to" Trainer's son. Trainor also prepared

another deed conveying the property from Lee's practice back to

Trainer's son, signed by Trainor, again, in his purported

capacity as Lee's agent. Lee testified that he had not seen

these documents until after he became embroiled in a dispute with

5 Smith over title to the property, that Trainor had never notified

Lee that the deed was being rescinded due to unpaid obligations,

and that Lee had never authorized Trainor to act as his agent.

Contemporaneously with his preparation of the "Release of

Lien" and deed from Lee's office to Trainer's son, Trainor also

prepared a purchase and sale agreement and deed transferring 16

Trainor Road to Smith. At Trainer's suggestion, DesMarais, who

had fallen behind on his mortgage payments on 12 Trainor Road,

approached Smith, a builder, with a plan to develop 16 Trainor

Road. The particulars of the deal changed over time, but

eventually it was agreed that Smith, having bought the property,

would finance the construction of a custom home there via a bank

loan obtained with Trainer's help, and that DesMarais would

receive a $10,000 finder's fee out of the loan proceeds. Smith

testified that someone he knew only as "Carol," who was the

girlfriend of Smith's friend Bill Ewell, also planned to invest

$20,000 in the development of the property at some point, but

backed out; Trainor said she would be repaid.

On its face, the purchase and sale agreement obligated Smith

to pay $250,000, with $50,000 down, but he and Trainor had agreed

beforehand that the price was actually only $130,000, with

nothing down--Smith was to give Trainor $20,000, but it would be

refunded once Trainor obtained a loan secured by the parcel.

6 Trainor also granted Walden a $200,000 mortgage on the parcel as

"security" for his investment in one of Trainer's businesses,

accompanied by a promissory note in that amount from Smith to

Walden, though Smith testified that he never expected to make any

payments on note because it "would be taken care of" once he

obtained financing for the property. These documents allowed

Smith to seek a $400,000 construction loan from a bank, with half

the proceeds going to repay Walden's "mortgage" and the other

half going to build a house on the parcel.

But the bank would not make the loan unless Smith paid the

full $50,000 down payment on the parcel due under the purchase

and sale agreement. So, to make up for the $30,000 shortfall,

Trainor suggested that Smith sell an easement in the property to

DesMarais, who owned the nearby 12 Trainor Road lot. DesMarais

testified, however, that he never signed the memorandum, later

submitted to the bank, evincing his agreement to buy the easement

and that, in fact, the memorandum misspelled his name. And Smith

testified that he had no expectation of receiving $30,000 from

DesMarais for the easement. The bank, none the wiser as to this

and other unfavorable aspects of the deal from its perspective,

including the actual purchase price and the nature of Walden's

mortgage, agreed to make the construction loan as requested.

7 During the processing of the loan, the registry of deeds in

Maine faxed a copy of Smith's deed for 16 Trainor Road, along

with other documents, to the same title company in Portsmouth

that had handled the transfer of the property to Lee (who, again,

remained very much unaware that his land had been transferred to

and was being encumbered by someone else). This transmission was

the basis of count six of the indictment, another of the wire

fraud charges on which Trainor was convicted. At Trainer's

direction, Walden told the bank how to distribute the $200,000

purportedly due under his mortgage, including five separate

checks to Trainor totaling $91,700, with the balance going to

Walden. Smith testified that Trainor gave him one of these

checks, for $20,000, to refund the down payment on the property,

as agreed. Trainor now claims that this money was actually

intended to reimburse "Carol" for her $20,000 initial investment,

but Smith flatly denied that when asked about it at trial.5

5Trainor claims this testimony was false in light of a "partnership agreement." This agreement, however, merely purports to assign the "right" to purchase 16 Trainor Road from the partnership to Smith, while reserving the partnership's right to "profits generated from the sale of the residence to be constructed there." It is not a "partnership agreement" in that it does not set forth the respective rights and duties of the partners or, indeed, even identify them. Moreover, it does not so much as mention "Carol," let alone reflect any right she had to the proceeds of the construction loan. Shortly after the construction loan closed. Smith was

contacted by Lee, who claimed to be the rightful owner of the 16

Trainor Road property. Lee also confronted his client, Jones,

about the transfer of the parcel, leading Jones to call Trainor

for an explanation. According to Jones, Trainor explained that

he re-transferred the property because of outstanding taxes--not

because, as Trainor now suggests, he did not in fact owe Jones

any money. Defense counsel focused on the claimed non-payment of

taxes in his cross-examination of Lee, getting him to admit that

he was unaware of any real estate transfer tax on the transaction

and that he did not know whether the other real estate taxes on

the parcel had been paid.

Lee also testified to a phone call from Trainor in which he

acknowledged that Lee was upset about the unauthorized transfer

of the property and offered to attempt to resolve the matter.

During this call, Trainor defended his actions by pointing out

that he had never actually signed Lee's name to anything, but,

significantly, did not say that he was entitled to re-transfer

the property back to his son because the debt underlying the

original transfer was invalid. Indeed, according to Lee's

account, Trainor did not dispute the underlying debt at all. The

call ended when Trainor hung up after Lee accused him of fraud.

Lee's next call was to the authorities.

9 Standard of Review

Under

, a prisoner serving a sentence

imposed by a federal court who is

claiming the right to be released upon the ground that the sentence was imposed in violation of the laws of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

"A petitioner who invokes section 2255 is not entitled to an

evidentiary hearing as a matter of right." David v. United

States,

(1st Cir. 1998). In particular, no

hearing is necessary when the petitioner's allegations state

conclusions instead of facts, contradict the record, are

inherently incredible, or do not entitle him to relief even if

they are true. Owens v. United States.

(1st Cir.

2007). As fully explained infra, because Trainer's claims fit

this description, his motion is denied without a hearing.

Discussion

Trainor claims that: (1) the government failed to prove

counts five and six, (2) certain government witnesses perjured

themselves at trial, (3) the court erred in imposing restitution

10 as part of his sentence, and (4) he received ineffective

assistance of counsel in preparing for and conducting his defense

at trial. In response, the government argues that Trainor cannot

raise any of these claims but ineffective assistance in this

collateral proceeding because he failed to raise them on direct

review and, furthermore, that Trainor cannot challenge the

restitution order under § 2255. The government also argues that

all of the claims, including those based on ineffective

assistance of counsel, are without merit. The court will

consider the government's procedural arguments first.

I. Procedural Default and Other Limitations on S 2255

Because a petitioner challenging restitution obligations

imposed as part of a sentence is not '■'claiming the right to be

released," the First Circuit has held that § 2255 does not

authorize collateral attacks on restitution orders. Smullen v.

United States.

(1st Cir. 1996); see also, e.g..

Kaminski v. United States.

(2d Cir. 2003);

Barnickel v. United States.

(7th Cir. 1997).

So Trainor cannot challenge the restitution order here.6 That

6Given this limitation, the circuit has recognized that a restitution order can be collaterally attacked by a petition for writ of error coram nobis. United States v. Barrett.

, 56 n.20 (1st Cir. 1999). To obtain this extraordinary form

11 claim can therefore be dismissed without the need for an

evidentiary hearing. See Hager, 993 F.2d at 5.

Section 2255 also "is not a substitute for a direct appeal"

from the sentence or the conviction supporting it. Knight v.

United States.

(1st Cir. 1994). So a court

generally cannot entertain, under § 2255, challenges to a

conviction or sentence that were not raised on direct appeal

unless the petitioner shows both "cause" for failing to do and

"prejudice" as a result, or that he is actually innocent. Owens

v. United States.

, 56-57 & n.6 (1st Cir. 2007). This

rule is known as "procedural default."

An exception to the

rule, however, is a claim of ineffective assistance of counsel,

which normally cannot be raised on direct appeal and must

therefore await review on a collateral attack under § 2255.

Massaro v. United States.

(2003).

The government argues that, by failing to raise any of his

present claims for relief in his direct appeal from his

convictions, Trainor has procedurally defaulted all of them

of relief, however, a petitioner must explain, among other things, why he did not exploit other avenues of attack, including direct appeal. Hager v. United States.

(1st Cir. 1993). Trainor has made no attempt to do so. See infra. It should also be noted that, in entering into a plea agreement to resolve the charges against him in the Southern District of Florida, Trainor waived his right to appeal his sentence in this case as well as that one.

12 except insofar as they allege ineffective assistance of counsel.

To receive collateral review of these claims, then, Trainor bears

the burden of excusing his procedural default, by showing, as

just mentioned, either cause and prejudice or actual innocence.

See Derman v. United States.

(1st Cir. 2002) .

Trainor does not attempt to show cause for the omission of

these claims from his direct appeal, and none is apparent from

the record.7 Indeed, while constitutionally ineffective

assistance of counsel in failing to raise a claim can constitute

cause, see Murray v. Carrier.

(1986), Trainer's

several complaints of omissions by his trial attorneys do not

extend to any of the defaulted claims, and he has made no

allegation at all of ineffective assistance by appellate counsel.

Trainor has also failed to show prejudice from his failure

to raise these claims earlier, because they are without merit:

(1) Trainer's claim that the government failed to adduce

sufficient evidence of counts five and six depends entirely on

his view that the transmissions in question were alleged to have

7There is no indication, for example, that the testimony came to appear false only in light of evidence acquired since trial; to the contrary, Trainor argues that the witnesses committed perjury based on purported inconsistencies between their testimony and other evidence received at trial. There could be no cause, then, for failing to raise the claim earlier. See Magee v. Harshbarqer.

(1st Cir. 1994).

13 come from (count five) or gone to (count six) a title company in

Stratham, New Hampshire, while the evidence at trial showed that

the title company was actually located in nearby Portsmouth.

This view is mistaken. Leaving aside how a variance on such a

minor detail could possibly have prejudiced Trainer's defense,

see United States v. Escobar-de Jesus.

(1st

Cir. 1999) (finding no prejudicial variance between charge that

offense occurred in Guayama, Puerto Rico, and proof that it

occurred in Guanica, Puerto Rico), there was no variance anyway.

Before trial, the government successfully moved to strike from

the indictment, as surplusage, the designation of Stratham as the

place of the title company in counts five and six.8 So, by the

time the case went to trial, the government was alleging that the

title company was located simply in New Hampshire, rather than in

any particular municipality. Trainor does not otherwise contest

the sufficiency of the government's proof on counts five and six.

(2) Trainor claims perjury by three government witnesses:

Lee, Smith, and Leslie Ogden, an attorney who handled the loan

closing on 12 Trainor Road for the title company. But, as

discussed supra notes 2 and 4, Trainor has come forward with

8Based on the same incorrect view of these charges, Trainor argues his "actual innocence" of them. Insofar as this argument is offered to excuse the procedural default of Trainer's claims, then, it likewise cannot prevail.

14 nothing to show that the challenged aspects of Smith's or Ogden's

testimony were false. So these allegations "fall far short of

showing that the witnesses in question perjured themselves, much

less that the government knowingly allowed them to do so."

United States v. Casas.

(1st Cir. 2005). And,

while Lee's testimony differed from Jones's on one point, supra

note 3, such a conflict in the evidence is a matter for the jury,

not a constitutional violation arising from the knowing use of

perjury to convict. See id.

Because Trainor has failed to excuse the procedural default

of his challenges to the sufficiency of the government's evidence

on counts five and six or the testimony of certain witnesses,

those claims can be dismissed without an evidentiary hearing.

See Porcaro v. United States.

(1st Cir. 1984) .

II. Ineffective Assistance of Counsel

Trainor claims that his attorneys made a number of errors of

constitutional magnitude in preparing for his defense, and

defending him, at trial. These claims fall into roughly seven

categories: (A) failure to challenge the underlying debt from

Trainor to Jones that served as the basis of the transfer of 16

Trainor Road to Lee; (B) failure to explore agency theories that

would have, in Trainer's view, cast these dealings in a less

15 culpable light; (C) failure to challenge what Trainor sees as

Lee's implication of other bad acts to him; (D) failure to use a

professional investigator before trial; (E) failure to challenge

the government's theory that Trainer's crimes were motivated by

greed; (F) failure to challenge a number of the allegations in

the indictment; and (G) failure to challenge purported

deficiencies in the indictment.

To prevail on a claim of ineffective assistance, a

petitioner must show both that counsel's "representation fell

below an objective standard of reasonableness" and "a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Strickland

v. Washington.

(1984). None of Trainer's

ineffective assistance claims satisfies either of these criteria.

(A) Trainor argues that his trial counsel should have, by

examining Lee and Jones and calling a number of other witnesses,

challenged the debt from Trainor to Jones that, Lee and Jones

testified, served as the basis of the transfer of 16 Trainor Road

to Lee's law practice. As discussed supra, however, defense

counsel steered clear of this subject for fear of opening the

door to an unflattering version of how the debt arose, namely.

16 that Trainor had misappropriated Jones's investments.9 As also

discussed supra. Trainor himself never questioned the validity of

the debt when he was confronted by Lee and Jones for transferring

the property back, but instead attempted to justify his actions

by suggesting that Lee had failed to pay real estate taxes.

In examining Lee and Jones, then, defense counsel chose to

explore that theory, rather than the substantially more

problematic one that Trainor did not owe Jones any money. This

was a reasonable tactical decision--indeed, counsel was able to

get Lee to admit that he did not know whether the taxes had in

fact been paid--not ineffective assistance. See Horton v. Allen.

(1st Cir. 2004) (ruling that defense counsel

had not been ineffective in not calling alibi witnesses whose

testimony would have conflicted with defendant's own version of

events); Lema v. United States.

(1st Cir. 1993)

9Trainor claims that the testimony and witnesses overlooked by his lawyers would have demonstrated otherwise, even that it was Jones, not Trainor, who had done the misappropriating. But the proffered evidence--which consists largely of Trainer's representations "on information and belief" as to what various witnesses would say on aspects of his business dealings with Jones, accompanied by various documents the significance of which is not readily apparent--does not call Trainer's malfeasance in those dealings into serious doubt. Aside from the largely unverified nature of this material, Trainor admitted to misappropriating Jones's investments in pleading guilty to tax evasion in another case and, in any event. Trainer's claim that Jones was the wrongdoer was contrary to the explanations he and Lee received from Trainor for re-transferring the parcel.

17 (ruling that defense counsel had not been ineffective in not

calling witnesses who would offer both exculpatory and

inculpatory testimony).

Furthermore, assuming that the proffered testimony could

have clouded the issue of whether Trainor owed money to Jones,

but see note 8, infra, Trainor does not explain how the

government's case of wire fraud arising out of the transfers of

16 Trainor Road to and from Lee would have suffered as a result.

The record still would have shown that Trainor transferred the

parcel from Lee by falsely claiming to be his agent, and without

any notice whatsoever to Lee or Jones as to what was happening,

which is sufficient to prove the "scheme to defraud" essential to

a wire fraud conviction. See, e.g.. United States v. Pimental,

(1st Cir. 2004) ("In order to find a 'scheme to

defraud,' the jury simply had to determine that [the defendant]

was attempting to wrong one in his property rights by dishonest

methods or schemes.") (internal quotation marks and bracketing

omitted). Accordingly, Trainor has failed to show a reasonable

probability that, but for his counsel's alleged errors in failing

to introduce the testimony in question, the jury would have found

differently on that charge.10 See Horton,

10The same is true of Trainer's analogous claim that counsel erred by failing to call Bill Ewell to testify as to Carol's

18 (rejecting ineffective assistance claim where counsel's failure

to produce witnesses would not have influenced outcome).

(B) Belatedly, Trainor faults trial counsel for not putting

in evidence to support an "apparent authority" theory,

particularly the testimony of Lee's wife and office manager,

Kelly. On this theory, as Trainor sees it, he legitimately acted

as the "apparent agent" of Lee's law practice in "rescinding" the

transfer of 16 Trainor Road.11 The doctrine of apparent

authority, however, binds a principal to third parties for the

actions of an agent in accordance with the principal's

manifestations to those third parties. Restatement (Second) of

Agency § 8 (1958); it does not bind a principal to the actions of

a third party who, by claiming to act as an agent without any

investment in the development of 16 Trainor Road. At most, the proffered testimony would have contradicted Smith's story that the $20,000 in loan proceeds directed to him was intended as a return of his deposit; it would not have undermined the government's case that Trainor procured the loan as part of a fraudulent scheme to enrich himself. In any event, Trainor offers nothing beyond speculation that supports his version of how Ewell would have testified, see note 5, supra.

11Trainor does not claim that Kelly Lee would have contradicted her husband's testimony that he had not authorized Trainor to act as his agent; instead, he speculates that her testimony as to her own authorization to handle certain aspects of the paperwork for 16 Trainor Road-which, it should be noted, never included signing any documents as "agent for the parties," like Trainor did-would have somehow supported the notion that Trainor had similar authorization.

19 authorization at all from the principal, self-deals in his

property, as the evidence showed Trainor had done by transferring

16 Trainor Road to his son from Lee's law office based on

documents Trainor signed in his purported capacity as "agent for

the parties." See id. § 201A, cmt. b (noting that an agent who

holds title to the principal's property in that capacity cannot

effectively transfer it to a third party who has knowledge of the

agency relationship).

Trainor further complains that his trial counsel should have

developed the theory that Lee was acting as the agent to Jones,

"an undisclosed principal," in the 16 Trainor Road transaction in

order to evade judicial oversight that a Nevada court had imposed

over Jones's assets. But, as the government points out, this

theory provides Trainor with no legitimate reason for re­

transferring the parcel from Lee without his knowledge.12

Because Trainer's "agency" theories are so far off the mark,

counsel could neither have acted unreasonably nor hurt Trainer's

defense by not raising them. See, e.g.. Veiux v. Pepe, 184 F.3d

12Trainor seems to suggest that, because, on this theory, the purpose of the transaction was to defraud a court, he was somehow justified in undoing the deal afterwards. Like a number of Trainer's other attempts to explain his actions, however, this theory--assuming it has even the slightest merit--conflicts with the contemporaneous explanations Trainor gave to Lee and Jones, and implicates Trainor in another fraudulent scheme. Counsel cannot possibly be criticized for staying away from it.

20 59, 64 (1st Cir. 2001) ("failing to pursue a futile tactic does

not amount to constitutional ineffectiveness").

(C) Trainor argues that counsel erred by failing to

challenge testimony that he sees as having implicated other bad

acts to him: Lee's statement that he did not believe Trainor

would receive any profit from their 16 Trainor Road deal,

"particularly because of the way that Mr. Trainor had got the

seven million dollars" from Jones. Insofar as Trainor suggests

his counsel should have explored that subject further with Lee,

that claim has already been rejected. See Part II.A, supra.

Insofar as Trainor suggests his counsel should have moved

the court to strike or to order the jury to disregard the

testimony, it is common for defense attorneys to eschew such

measures for fear that they serve only to call undue attention to

potentially harmful testimony. See, e.g.. United States v. Diaz.

, 224-25 & n .3 (1st Cir. 2007); United States v.

DesMarais.

(1st Cir. 1991). This is a

particularly sound strategy where, as here, the testimony is

limited to only the most isolated and indirect reference to

prejudicial matter. For this reason, in fact, even if counsel

could be said to have been ineffective in failing to object to

the testimony, that error could not possibly have hurt Trainor.

See, e.g.. Diaz.

(upholding denial of mistrial

21 motion based on prosecution witness's isolated statement that

defendant had entered the United States illegally).

(D) Trainor complains that, instead of taking advantage of

this court's authorization of investigative services on his

behalf to hire a professional investigator, his trial attorneys

used that authorization to cover the expenses of conducting the

investigation themselves. As a result, Trainor alleges, the

investigation failed to turn up exculpatory evidence, but he

provides no details as to what that evidence might have been or,

for that matter, how a professional investigator would have found

it when counsel did not.13 Trainer's claim that counsel rendered

ineffective assistance by entrusting the pre-trial investigation

to themselves is without merit. See, e.g.. Lema.

(ruling that counsel had not been ineffective in failing to

interview potential witnesses whose testimony would not have

aided and might have hurt the defendant's case).

(E) Trainor also faults his lawyers for failing to

challenge the government's theory that greed had motivated his

crimes, arguing that they should have introduced evidence of what

he portrays as various humanitarian efforts on his part. Because

13Insofar as Trainor suggests that the evidence consists of the testimony and documents he faults counsel for not using to challenge the debt to Jones, that claim fails for the reasons articulated in Part II.A, supra.

22 these efforts have no apparent connection to the transactions at

issue in Trainer's case, however, this evidence could have been

received, if at all, only as character evidence, i.e., to show

that Trainor is not generally a greedy person. Opening the door

to evidence of Trainer's character would have been disastrous,

given his highly checkered past. Trainor has been previously

convicted on multiple occasions, including for crimes of

dishonesty. Indeed, even one of the documents that Trainor

argues should have been introduced, a 1996 letter from the

administrator of a charity, makes reference to the fact that

Trainor "is about to stand trial" on unrelated charges and

alludes to other misconduct by him against the charity itself.

Counsel's judgment in steering clear of the entire issue of

Trainer's character cannot be questioned; the introduction of

that subject at trial would have done far more harm than good.

(F) Trainor also accuses trial counsel of failing to

challenge a number of the allegations in the indictment,

particularly those alleging overt acts in furtherance of the

conspiracy. Yet much of Trainer's argument in support of this

claim simply disputes the government's evidence of these

allegations, rather than identifying what trial counsel failed to

do to contest them. Because the sufficiency of the government's

conspiracy case has already been upheld on Trainer's direct

23 appeal from his conviction, however, the issue cannot be

relitigated through a § 2255 motion, see Murchu v. United States,

(1st Cir. 1991), despite Trainer's attempt to

recharacterize the issue as ineffective assistance of counsel,

see Tracey v. United States.

(1st Cir. 1984).

Insofar as Trainor identifies particular evidence he says should

have been introduced to rebut the government's allegations, that

evidence--or, more accurately. Trainer's representations as to

what that evidence would be--has already been discussed in the

context of Trainer's other claims. This ineffective assistance

of counsel theory has no merit.

(G) Finally, Trainor claims that counsel failed to

challenge what he calls "flaws in the indictment" that prejudiced

his defense, particularly the alleged "failure to particularize"

the nature of the illegal conduct underlying the wire fraud

counts.14 The indictment, however, describes the actions of

14Trainor also asserts, without explanation, that the "flaws" in the indictment amounted to a violation of his Fourth, Fifth, and Sixth Amendment rights. It is difficult to understand how the substance of an indictment can violate any rights of the accused under the Fourth Amendment, which guarantees against unreasonable searches and seizures, or the Sixth Amendment, which guarantees a speedy and public trial by an impartial jury, the confrontation of adverse witnesses, compulsory process, and counsel. And, while some of the protections of the Fifth Amendment do extend to indictments--requiring them for felonies, preventing double jeopardy, and ensuring due process--Trainor does not hint at how the indictment may have violated any of

24 Trainor and his co-defendants in substantial detail in setting

forth the conspiracy count, then simply realleges and

reincorporates those allegations in each of the wire fraud

counts. This is a common method of pleading both civil and

criminal cases. It does not run afoul of the constitutional

requirements for an indictment. See Hamlinq v. United States, .

(1974). Counsel was correct not to challenge

the indictment on this basis (though, it should be noted, they

did challenge it on others, albeit unsuccessfully).

Conclusion

For the foregoing reasons. Trainer's motion to vacate

(document no. 1) is DENIED. Trainor received the able assistance

of counsel throughout the trial and pre-trial processes in this

court. The clerk shall enter judgment accordingly and close the

case .

SO ORDERED.

IJoseph A. DiClerico, JrY United States District Judge

July 24, 2008

cc: Jack B. Patrick, Esquire William P. Trainor, pro se

these guarantees, save for his claim that it failed to allege his illegal conduct with the requisite specificity.

25