NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 18-3754 ________________

UNITED STATES OF AMERICA

v.

ROBERT G. BARD, Appellant ________________ Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 1-12-cr-00181-001) District Judge: Hon. Sylvia H. Rambo ________________

Submitted Under Third Circuit L.A.R. 34.1(a) January 21, 2020

Before: AMBRO, MATEY, and FUENTES, Circuit Judges

(Opinion filed: February 12, 2020)

________________

OPINION* ________________

AMBRO, Circuit Judge,

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Robert Bard appeals his conviction for 21 counts of securities fraud, investment

advisor fraud, wire fraud, mail fraud, and making false statements. The District Court

sentenced him to 262 months in prison. In 2016, Bard filed a motion to vacate his

sentence under

, alleging that three of his prior attorneys rendered

constitutionally ineffective assistance of counsel throughout nearly every stage of his

proceeding. The District Court denied his motion without a hearing on the record. On

appeal, Bard moved to supplement the record and we granted his motion. After

reviewing the additional evidence, we agree that the record does not support Bard’s

ineffective-assistance claims, and we affirm the District Court.

I. Facts and Procedural History

In 2009, the Securities and Exchange Commission (SEC) and Federal Bureau of

Investigation (FBI) opened an investigation into Bard’s conduct as an investment advisor.

Later that year, Bard voluntarily participated in a “proffer interview,” during which he

admitted to providing his clients with doctored account statements to conceal his

portfolio’s losses, borrowing funds from his clients, and lying to the authorities.

In June 2010, the Government sent Bard’s then-attorney, Robert Welsh, a

proposed plea offer. It provided that the maximum sentence for a single count of mail

fraud was 20 years and that the Government would make a sentencing recommendation

within the Guidelines range after an evidentiary hearing on the loss amount.

That August, Welsh responded in a letter that neither accepted nor rejected the

plea. The Government replied on August 26, indicating that the plea offer was still open.

Welsh forwarded the offer to Bard on September 1. Later that month, Welsh sent Bard a

2 lengthy email advising him on several aspects of his case and the proposed plea deal.

The email stated that if the prosecution “has to continue with the investigation using the

FBI and the grand jury, [it] will pursue every possible sentencing enhancement, including

jacking up the loss calculation.” App. 78. The email went on to explain that Bard did not

have a defense on the wire fraud charge, that he was best positioned to negotiate a deal

before the prosecutor’s office investigated his case further, and that any mitigating factors

would not be of help before a jury. Welsh concluded, “if you went to trial in what is

basically a losing effort, you would risk losing the sentencing judge in terms of these

mitigating factors.” App. 79. Bard replied that he would have a decision by that Friday,

but there is nothing in the record showing that he ever followed up with Welsh.

At the end of September 2010, Bard fired Welsh and retained Dennis Boyle. Bard

initially told Boyle that he was not guilty and would not plead guilty. Eventually, he

indicated that he might plead guilty if he was sentenced to probation. Boyle spoke with

the prosecution about the possibility of a probationary sentence and was told that it was

not an option.

A grand jury indicted Bard in July 2012. Boyle communicated with the

prosecutor’s office about a potential plea deal as late as January 2013, although by then

he believed there was a high probability that the case would go to trial.

Boyle sent Bard a letter in July 2013 stating that there was no outstanding plea

offer from the Government, that Bard had been “fully aware of the previous plea offer

originally conveyed to [his] prior counsel, Robert Welsh, Esquire, and [that Bard had]

3 voluntarily rejected that offer.” App. 93. Bard signed the letter, acknowledging that he

had read it carefully and discussed it with his counsel.

A jury convicted Bard of all counts at trial. The District Court held a pre-

sentencing evidentiary hearing on the loss amount and number of victims. Bard did not

have an expert witness at this hearing, and afterwards Boyle moved to withdraw as

counsel. The District Court determined that Bard’s conduct resulted in $2.5 to $7 million

of losses and affected over 50 victims. As noted, Bard received a 262-month sentence.

Fredrick Ulrich, a court-appointed attorney, represented Bard on appeal. We

affirmed the District Court. United States v. Bard,

(3d Cir. 2015).

Bard thereafter filed a motion to vacate his sentence under

. He

alleged that his attorneys were ineffective for not fully communicating the plea offer,

failing to hire a financial expert regarding losses at trial and sentencing, and for

deficiently arguing the direct appeal of his sentence. The District Court dismissed Bard’s

motion without an evidentiary hearing, ruling that the record conclusively established that

his ineffective-assistance-of-counsel claims lacked merit. Bard appeals to us.

II. Discussion

We have jurisdiction over Bard’s claims under

. We exercise

plenary review over the legal component of claims for ineffective assistance of counsel.

United States v. Smack,

(3d Cir. 2003). “The underlying facts are

reviewed for clear error, and are subject to independent judgment on whether the facts

thus found constitute constitutionally ineffective assistance of counsel.”

(internal

citations omitted).

4 In order to show that his lawyers rendered ineffective assistance of counsel, Bard

must establish “(1) that counsel's representation fell below an objective standard of

reasonableness and (2) that there is a reasonable probability that, but for counsel's errors,

the result of the proceeding would have been different.” United States v. Nino,

(3d Cir. 1989) (citing Strickland v. Washington,

(1984)).

1. Welsh’s Representation During the Plea Negotiation

Bard alleges that his pre-indictment attorney, Welsh, failed to inform him of the

June 2010 plea offer until after it had lapsed and failed to counsel him on his sentencing

exposure under the plea. “Defendants have a Sixth Amendment right to counsel, a right

that extends to the plea-bargaining process.” Lafler v. Cooper,

(2012).

The District Court dismissed Bard’s claim, ruling that he did not have a constitutional

right to counsel during Welsh’s representation. It based its decision on nonbinding, out-

of-circuit caselaw that holds the right to counsel does not attach until indictment. United

States v. Bard,

, at *4 (M.D. Pa. Nov. 19, 2018) (citing Kennedy v.

United States,

, 493–94 (6th Cir. 2014)). We have never had occasion to

reach this issue and decline to do so here.

In the alternative, the District Court found that Welsh informed Bard of the plea

offer, and he voluntarily rejected it. Notification of the terms of a plea offer alone does

not qualify as “reasonably effective assistance of counsel.” United States v. Day,

(3d Cir. 1992). To the contrary, we have noted that “[k]nowledge of the

comparative sentence exposure between standing trial and accepting a plea offer will

often be crucial to the decision whether to plead guilty.”

5 We affirm the District Court’s ruling that Welsh’s representation was reasonably

effective assistance. Emails conclusively show that Welsh sent the offer to Bard on

September 1, 2010, just six days after the Government confirmed that it was still open.

By the end of the month, Welsh had provided Bard with an explanation of why he would

likely receive a more lenient sentence under the plea. In addition, Bard acknowledged

that he received the 2010 offer from Welsh and voluntarily rejected it in the 2013 letter.

2. Boyle’s Representation During the Plea Negotiation

We also affirm the District Court’s denial of Bard’s claim that Boyle rendered

ineffective assistance of counsel by failing to explain the plea offer to him. The Court

rejected this claim after finding that the record conclusively showed that the offer was not

open during Boyle’s representation.

The record is more nuanced. It reveals that Government confirmed the offer was

open fewer than 30 days before Boyle took over the case. And Bard’s acknowledgement

that the offer was no longer available in 2013 does not mean he could not have accepted

an offer in 2010.

In the alternative, the District Court reasoned that, even if the offer had been open

during Boyle’s representation, Bard’s claim fails on Strickland’s second prong because

he cannot show prejudice. Here, Bard must establish a reasonable probability that, but

for counsel’s errors, he would have accepted the plea. Lafler,

.

We agree that Bard cannot show prejudice. Boyle stated that Bard initially

refused to plead guilty and later indicated that he would only accept a plea that resulted in

a probationary sentence. Bard’s refusal to acknowledge wrongdoing throughout his

6 proceeding further supports the lack of prejudice. Bard’s statements and actions make

clear that he would not have accepted a plea that resulted in any term of imprisonment.

Thus, this claim fails as well.

3. The Expert Witness

Bard also alleges that Boyle rendered ineffective assistance of counsel because he

failed to retain an expert witness to testify on the appropriate damages calculation at

Bard’s sentencing hearing. Fewer than two weeks before the scheduled hearing, Bard

filed a motion to continue because his expert witness needed more time. After holding a

conference call with the parties, the District Court concluded that “it was Bard’s belated

decision to retain an expert only weeks before the hearing that caused the expert to be

unprepared to testify on an issue that had been identified by defense counsel prior to

trial.” Bard,

, at *2. We agree that any prejudice Bard suffered

because of the Court’s decision not to reschedule his hearing was “due to his unilateral

decisions and feet-dragging tactics.”

(internal citation omitted).

As the record conclusively refutes Bard’s ineffectiveness claim, we affirm the

denial of it.

4. The Direct Appeal

Bard alleges that on direct appeal his attorney, Ulrich, rendered ineffective

assistance of counsel because he failed to present certain cases as part of his request for a

downward variance based on

(a)(6), which instructs courts to consider

“the need to avoid unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct.” Under this framework,

7 “disparate sentences are allowed where the disparity is explicable by the facts on the

record.” United States v. Parker,

(3d Cir. 2006) (internal citation

omitted). On direct appeal, we determined that Bard was not similarly situated to the

defendants in the cases cited in his Sentencing Memorandum. Bard,

.

He also is not similarly situated to the defendants in the cases he cites here.

For example, at sentencing the District Court determined Bard’s total offense level

was 41, which included an 18-point adjustment given the loss amount. The defendant in

United States v. Bultmeyer,

(3d Cir. 2012), had a total offense

level of 30, while the defendants in the United States v. Fattah,

(3d Cir.

2017), and United States v. Musgrave,

(6th Cir. 2016), had loss

calculations under $2 million. Furthermore, Bard took his case to trial and received a

two-level adjustment for obstruction of justice, while the defendants in the other cases he

cites pled guilty and did not receive any adjustments for obstruction of justice. United

States v. Carpenter,

(8th Cir. 2016); United States v. Andre,

(3d Cir. 2015); United States v. Colamarino,

(W.D.

Pa. April 6, 2017). The failure to cite these cases does not constitute deficiency under

Strickland, as none of the defendants were similarly situated to Bard. We thus affirm the

District Court’s dismissal of this claim as well.

5. The Evidentiary Hearing

Finally, Bard claims that the District Court abused its discretion when it did not

hold an evidentiary hearing. A “court abuses its discretion if it fails to hold an

evidentiary hearing when the files and records of the case are inconclusive as to whether

8 the movant is entitled to relief.” United States v. Booth,

(3d Cir.

2005). While it is plausible that the District Court should have held an evidentiary

hearing, on appeal Bard filed a Motion to Supplement the Record with evidence that

would have been presented at the hearing. The additional evidence resolves any doubts

that Bard’s attorneys provided reasonably competent representation. Thus, we see no

need to remand this case for an evidentiary hearing.

* * * * *

We affirm the District Court’s denial of Bard’s petition.

9