Efraim Diveroli v. United States
803 F.3d 1258
| 11th Cir. | 2015Background
- Efraim Diveroli, owner of AEY, won a $298 million U.S. Army contract (2007) that forbade acquiring ammunition directly or indirectly from Chinese military companies.
- AEY purchased ammunition that originated in China, repackaged it to hide Chinese markings, and certified shipments as conforming and listing Albania as the manufacturer.
- The government discovered the deception after AEY delivered multiple shipments; AEY was paid over $10 million and profited ≈ $360,000; the Army terminated the contract and incurred replacement costs.
- A grand jury indicted Diveroli and AEY on numerous counts (false statements, major fraud, wire fraud, and conspiracy). Diveroli pleaded guilty to one conspiracy count in exchange for dismissal of the substantive counts.
- Diveroli later filed a 28 U.S.C. § 2255 motion claiming ineffective assistance of counsel because counsel allegedly miscalculated sentencing exposure, inducing his guilty plea; the district court denied an evidentiary hearing and Diveroli appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court abused discretion by denying evidentiary hearing on ineffective-assistance claim arising from counsel's alleged miscalculation of sentencing exposure | Diveroli: counsel told him exposure was 168–210 months (loss up to $30M); correct exposure at trial would be much lower, so he would have gone to trial | Government: even if counsel erred, evidence of guilt was overwhelming and defenses were frivolous, so no reasonable probability Diveroli would have insisted on trial | Affirmed — no hearing required; counsel’s error assumed but petitioner failed to show prejudice |
| Viability of "literal truth" defense to fraud / false-certificates | Diveroli: certificate entries could be literally true if "point of origin" meant point of shipment | Government: certificates and contract language, State Dept. guidance, photos, and internal emails show material misrepresentations about origin and conformity | Held: literal-truth defense frivolous and contradicted by record |
| Viability of "public authority" defense (reliance on government official) | Diveroli: relied on contact with U.S. Embassy official (Newsome) who allegedly knew about shipments and tacitly endorsed them | Government: Newsome expressly declined to intervene; State Dept. had told Diveroli exceptions required presidential determination; apparent authority is not a defense | Held: public-authority defense frivolous and contradicted by record |
| Whether district court applied correct prejudice standard and if any error was harmful | Diveroli: district court used wrong phrasing (looked to counsel’s perspective) and should apply Hill standard (would defendant have insisted on trial) | Government: even under correct standard, Diveroli could not show a reasonable probability he would have rejected plea because charges dismissed carried far greater exposure | Held: any standard error harmless; no reasonable probability Diveroli would have gone to trial |
Key Cases Cited
- Aron v. United States, 291 F.3d 708 (11th Cir. 2002) (standard for denial of evidentiary hearing in § 2255 context)
- Winthrop-Redin v. United States, 767 F.3d 1210 (11th Cir. 2014) (no hearing required where allegations are frivolous or contradicted by record)
- Holmes v. United States, 876 F.2d 1545 (11th Cir. 1989) (when to order evidentiary hearing on collateral attack)
- Hill v. Lockhart, 474 U.S. 52 (1985) (prejudice standard for ineffective assistance in guilty-plea context)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test: performance and prejudice)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (rationality requirement for rejecting plea)
- United States v. Merrill, 685 F.3d 1002 (11th Cir. 2012) (material misrepresentation and scheme to defraud)
- United States v. Bradley, 644 F.3d 1213 (11th Cir. 2011) (elements of scheme to defraud)
- United States v. Baptista-Rodriguez, 17 F.3d 1354 (11th Cir. 1994) (public-authority defense requires actual authority; apparent authority not a defense)
- Rad-O-Lite of Philadelphia, Inc. v. United States, 612 F.2d 740 (3d Cir. 1979) (corporation cannot seek relief under § 2255)
- Morgan v. United States, 346 U.S. 502 (1954) (coram nobis as remedy where § 2255 not available)
- Stoufflet v. United States, 757 F.3d 1236 (11th Cir. 2014) (standards for reviewing § 2255 denials)
- Atkins v. Attorney General of Alabama, 932 F.2d 1430 (11th Cir. 1991) (perspective-of-counsel phrasing cited below)
- United States v. Hawkins, 905 F.2d 1489 (11th Cir. 1990) (harmless-error doctrine in collateral review)