254 F.3d 30 (1st Cir. 2001)
UNITED STATES OF AMERICA, Plaintiff, Appellee,v.OSCAR FRIGERIO-MIGIANO AKA OSCAR MIGIANO-FRIGERIO, Defendant, Appellant.
No. 00-1863
United States Court of Appeals For the First Circuit
Heard March 5, 2001Decided June 29, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Benjamin Ortiz-Belaval, for appellant.
Timothy S. Vazquez, Assistant U.S. Attorney, with whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant U.S. Attorney, and Nelson Perez-Sosa, Assistant U.S. Attorney, were on brief, for appellee.
Before Torruella and Selya, Circuit Judges, Campbell, Senior Circuit Judge.
TORRUELLA, Circuit Judge.

1
On December 8, 1999, defendant-appellant Oscar Frigerio-Migiano stood trial for one count of conspiracy to launder money in violation of 18 U.S.C. § 1956(a)(1). After the government rested its case, Frigerio twice filed a motion for a judgment of acquittal. Although the court agreed that the evidence against Frigerio was "very thin," both motions were denied and the case was sent to a jury. On December 13, 1999, the jury returned a verdict against Frigerio. Frigerio filed another motion to set aside the verdict based on insufficiency of evidence, which was again denied. We conclude that there was insufficient evidence to convict Frigerio and reverse the decision of the district court.

BACKGROUND

2
On September 7, 1999, a federal grand jury for the District of Puerto Rico returned a one-count indictment charging Frigerio, Jaime Rafael Munoz and Neida Ortiz Acosta with conspiring to launder money in violation of 18 U.S.C. § 1956(a)(1). The government joined the trial of Frigerio and Neida Ortiz Acosta, and a jury was impaneled and sworn for these defendants on December 8, 1999. On that same day, Frigerio filed a motion for severance under Federal Rule of Criminal Procedure 14, alleging prejudicial joinder of defendants. The court denied the motion and the trial continued.

3
The government established at trial that Frigerio began working at "Phone Home," a money remittance business, around the end of October 1998. He was hired to assemble kitchen door hinges and clean the office. The government evidence showed that in addition to sending legitimate money from workers employed on cruise ships to their homes in foreign countries, Phone Home channeled over $26 million of drug money out of Puerto Rico. Frigerio worked at Phone Home until the business was shut down by government agents on December 9, 1998.

4
At trial, the government presented six witnesses. IRS Special Agent Donald Semesky testified in general terms about the structure of money laundering operations. Jose Mercado Febles, a convicted drug trafficker familiar with Phone Home, testified that a Colombian national known as "Fabio" sold heroin in Puerto Rico and brought the proceeds to Phone Home. Jesus Ivan Saenz Blanco, another convicted drug trafficker, testified that he had, on various occasions, carried $10,000 to $170,000 in small denominations to Phone Home for the purpose of transmitting the money to Colombia. Saenz Blanco stated that his money was counted upon arrival, and that he provided the workers at Phone Home with the fictitious names and phone numbers of the recipients in Colombia. Special Agent Gene Joseph Driggers, an agent with the U.S. Customs Service and a computer investigation specialist, identified the files of money transactions stored in the Phone Home computer. Finally, government witness Nelson Laracuente, assistant manager of the Old San Juan branch of Banco Popular, testified to the large amounts of cash deposited in Phone Home's bank accounts. None of these witnesses testified to knowing or meeting Frigerio, and the government stipulated that Frigerio's name was not found in Phone Home's computer database.

5
The only government witness to identify Frigerio was Luis Rivera Valentin.1 Rivera worked at Phone Home from August 1997 until it was closed in December 1998. He testified that though at first he simply ran errands and "did little things," he became involved in money transactions in January 1998. Rivera explained that the legitimate part of Phone Home, mostly involving money remittance from workers on cruise ships, was conducted in the front area of the office. This money was deposited in an account at First Federal Bank. He further testified that "flashy" and "suspicious people . . . drug dealers," would bring in large amounts of cash -- from $10,000 up to $300,000 -- in book bags, shoe boxes or computer boxes. Rivera understood from a March 1998 conversation with Neida Ortiz Acosta that the money was from the sale of drugs. He stated that these individuals were shown to the back of the office, where the money was counted and a receipt issued, "stating in code form the amount": for example, $45,000 would be documented as $45. The money was deposited in an account at Banco Popular.

6
According to Rivera, Frigerio accompanied him at night to deposit cash at Banco Popular. He also testified that Frigerio assisted in the process of counting money. To this end, the government presented two videotapes from cameras that federal investigators had installed and hidden in the back room of Phone Home. The first of these tapes was taken on November 23, 1998. In this video. Rivera identified Frigerio counting money and himself entering the room. Rivera also identified Frigerio as the person counting money in another videotape taken on November 27, 1998, alongside a man named "Pocho," who would bring in large amounts of currency. In addition, he stated that "every once in a while" Frigerio participated in the issuance of false receipts. Finally, Rivera testified that Frigerio was present when Phone Home was scanned for surveillance devices.

7
After the government rested its case, Frigerio moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a). Although the court acknowledged that the case against Frigerio was "very thin," it denied the motion, concluding from Rivera's testimony regarding the coded receipts that "there [was] at least something there that the jury could use to impute knowledge to him." The only defense witness was Neida Ortiz Acosta, to whom the government presented a rebuttal witness and concluded the evidence. After the jury left to deliberate, Frigerio renewed his motion for a judgment of acquittal, which was again denied.

8
On December 13, 1999, the jury returned a verdict against Frigerio as to the only count filed against him. On December 15, Frigerio filed a third motion under Rule 29, this time asking the court to set aside the verdict because of insufficiency of evidence. Fed. R. Crim. P. 29(c). The court denied the motion, and, granting a downward departure, sentenced Frigerio to a period of twenty-seven months incarceration and two years of supervised release. This timely appeal followed.

DISCUSSION

9
In assessing the sufficiency of the evidence in a criminal case, we ask "whether the evidence, viewed in the light most favorable to the prosecution, would permit a rational jury to find each essential element of the crime charged beyond a reasonable doubt." United States v. Zanghi, 189 F.3d 71, 79 (1st Cir. 1999) (quoting United States v. Guerrero, 114 F.3d 332, 339 (1st Cir. 1997)) (internal quotations omitted). The evidence presented by the government need not "preclude[] every reasonable hypothesis inconsistent with guilt in order to sustain a conviction." United States v. Hernandez, 218 F.3d 58, 64 (1st Cir. 2000) (quoting United States v. Loder, 23 F.3d 586, 589 (1st Cir. 1994)). However, the jury's verdict must be one that is "supported by a plausible rendition of the record." Id. (quoting United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)). We review a district court's Rule 29 determination de novo. Id.

10
Frigerio concedes that he engaged in "financial transactions" as defined in 18 U.S.C. § 1956(c)(4), but contends that the government failed to meet its burden of proving the knowledge elements of the crime charged.2 The knowledge requirement under 18 U.S.C. § 1956(a)(1)(B)(i) is twofold: the government must demonstrate (i) that the defendant knew that the funds involved in the financial transaction were the proceeds of some unlawful activity; and (ii) that he knew the transaction itself was "designed in whole or in part to conceal the nature, location, source, ownership, or control of the proceeds of such unlawful activity." 18 U.S.C. § 1956(a)(1)(B)(i). We now turn to the government's case.

11
Viewing the evidence in the light most favorable to the government, the jury could have found the following. During the period that Frigerio worked at Phone Home, he witnessed large amounts of small-denomination cash, ranging from $10,000 to $300,000, brought in bags and boxes by "flashy" and "suspicious" individuals. These were distinct from the smaller amounts of cash -- ranging from $100 to $5,000 -- brought in by seamen. Frigerio accompanied Rivera on a regular basis to Banco Popular, where the money was deposited. These deposits totaled $1,959,068 in the time that Frigerio worked at Phone Home; since the cash consisted mainly of small bills, Frigerio regularly carried a considerable and noticeable bulk of money on his trips to the bank. Frigerio also witnessed the separation of operations in the front and back of Phone Home, namely, that larger amounts of cash were counted by machines in the rear while smaller amounts brought in by seamen were accepted at the front counter. Frigerio at least twice counted money himself in the rear, and on one occasion did so in the presence of a known drug dealer (although perhaps not known to Frigerio). Finally, Frigerio issued false receipts, which "coded" the amount of money received so that it appeared to be less than it actually was. Based on these findings, a jury could infer that Frigerio knew there were unusually large sums of money, brought into Phone Home on a regular basis, without any identifiable source. In short, a jury could reasonably conclude that Frigerio knew he was handling money derived from an illicit activity.

12
However, this, standing alone, is insufficient. As we have previously indicated, the government must also prove beyond a reasonable doubt that Frigerio knew that the transactions in which he participated were part of a money laundering scheme. Though onerous, the double-intent requirement serves an important function by shielding innocent individuals who engage in otherwise legal financial activity. The government's burden is compounded in the context of this case, where activities such as counting money, making deposits, and issuing receipts formed a routine part of the legitimate side of the business. Nevertheless, for the verdict to stand, the government must prove this element of knowledge for at least one of its proffered transactions.

13
We first address the nightly deposits at Banco Popular. The government argues that since Phone Home had two bank accounts, "[i]t could be inferred that Frigerio knew one was to deposit monies obtained through legal means and the other [Banco Popular] to deposit money acquired from illegal ventures." This conclusion simply lacks evidentiary support. It may be true, and indeed the government established, that Phone Home maintained separate bank accounts for its legitimate and illegal deposits. However, there is no nexus between the existence of these accounts and Frigerio's knowledge. The government presented no evidence, for example, that Frigerio handled or saw any bank account statements, that he was familiar with the account numbers, or even that he made any of the deposits himself.3 It is also conceded by the government that Frigerio did not have access to the computer files which tracked the money laundering details of the two accounts. Thus, no reasonable juror could infer that, by accompanying Rivera to the bank and witnessing the deposits, Frigerio knew that the purpose of the deposits was to conceal the source and ownership of the money.

14
We next consider the videos showing Frigerio counting money in the back area of Phone Home. The government concedes that, regardless of its source, all of the money entering Phone Home was counted. The evidence does show that money from legitimate and illegitimate sources varied in amount and were counted in distinct areas of the office and in different ways: we have noted already that a jury could conclude from this evidence that Frigerio knew that the money he was counting came from illegal sources. Even so, one cannot further conclude that Frigerio knew he was participating in an attempt to conceal the illicit nature of the money. That is, in a business that provided the very service of counting money, there is nothing about the act of machine counting money that is inherently connected to money laundering activity. Consequently, this transaction also fails to prove the requisite knowledge element.

15
The strongest piece of evidence offered by the government regarding Frigerio's knowledge of the money laundering operation is his issuance of "coded receipts." Rivera testified that these receipts represented amounts significantly smaller than those actually received. In addition, Rivera stated that the receipts indicated where the money was going, which could have revealed to Frigerio that large amounts of cash were destined for Colombia. For the government to prevail, it must be reasonable to infer, based on this evidence, that Frigerio was aware of the attempts to conceal drug-related money.

16
We believe that such an inference is too attenuated to sustain the verdict. Even if Frigerio issued coded receipts, there must be something about the receipt itself that would permit the inference that he knew the meaning and purpose of the code. However, the government did not present the actual receipts themselves. Instead, the record contains only Rivera's description of their contents.4 This description, moreover, is wholly without context: we do not know when Frigerio issued these receipts, to whom, or even whether they did indeed indicate suspicious destinations. Frigerio did not participate in this process regularly, but "every once in a while," in the course of performing various other, non-financial duties at Phone Home. Finally, it is a conceded fact that Frigerio was not engaged in the process of entering these transactions under fictitious names in the computer. Based on the evidence presented at trial, we do not believe that a jury could infer Frigerio's knowledge of the money laundering operation beyond a reasonable doubt.

17
The government contends, as an alternative argument, that to the extent Frigerio lacked knowledge of the money laundering conspiracy, he was "willfully blind" to the illegal activities around him. We have indeed stated that where there are prominent "red flags" that signal criminal activity is afoot, a jury may infer that a defendant deliberately ignored facts which would have otherwise been obvious to a reasonable person. United States v. Gabriele, 63 F.3d 61, 66 (1st Cir. 1995). However, no such "red flags" were present here. Rivera's testimony indicated that even he did not become wary of Phone Home's business until he had worked there for over seven months. His knowledge of the money laundering operation, moreover, was gained through working with the computer. By contrast, Frigerio worked at Phone Home for less than seven weeks and did not use the computer. The activity occurring in Phone Home was therefore not a sufficient "red flag" to permit an inference of willful blindness to the conspiracy.

18
Likewise, Frigerio's presence during a scan for surveillance devices is not a "red flag" in the context of this case. First, even legitimate businesses -- particularly those dealing with financial transactions -- might use surveillance devices as a valid security measure. Even if we were to accept that the use of this equipment was suspicious, however, we note that there is no evidence that Frigerio was present on more than one occasion when this scanning occurred. As a result, we do not believe that the scan rose to the level of a "red flag" signaling money laundering activity.

19
In reaching our conclusion, we acknowledge that this is a close case. We agree with the district court, however, that the government's evidence is, even at its best, "very thin" -- and can be construed just as persuasively in favor of Frigerio. In such a case, the defendant receives the benefit of the doubt: "[W]here an equal or near equal theory of guilt and a theory of innocence is supported by the evidence viewed in the light most favorable to the verdict, 'a reasonable jury must entertain a reasonable doubt.'" United States v. Andujar, 49 F.3d 16, 20 (1st Cir. 1995) (citing United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir. 1992)). We conclude that the jury's verdict is unsupported by the evidence.

20
Reversed.

Notes:

1
 Rivera was actually the third witness presented by the government, but since his is the only testimony relevant to this appeal, we explore it separately.

2
 Frigerio also appeals, in the alternative, the district court's denial of his severance motion. Our conclusion concerning the sufficiency of the evidence makes it unnecessary to address this issue.

3
 In fact, Rivera testified that Frigerio went with him for security reasons; "[s]o just in case there[ was] an assault or anything, there would be a witness."

4
 Normally, to prove the contents of a writing, the original writing is required in preference to testimony about its content. Fed. R. Evid. 1002. However, since no objection was made on these grounds at trial and the issue is not raised on appeal, we do not address the admissibility of this testimony. See, e.g., United States v. McMahon, 938 F.2d 1501, 1509 n.4 (1st Cir. 1991) (noting that failure to object for best evidence below lowers the standard of review when issue is raised on appeal).


471 F.2d 1170
82 L.R.R.M. (BNA) 2017, 70 Lab.Cas.  P 13,242
FAIRMONT FOODS COMPANY, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 72-1283.
United States Court of Appeals,Eighth Circuit.
Submitted Nov. 16, 1972.Decided Dec. 21, 1972.

Harry L. Browne, Kansas City, Mo., for petitioner.
Leonard M. Wagman, Atty., N.L.R.B., Washington, D. C., for respondent.
Before MATTHES, Chief Judge, ROSS, Circuit Judge, and VAN PELT, Senior District Judge.
ROSS, Circuit Judge.

1
Fairmont Foods Company (Fairmont) petitions this Court to review and set aside an order of the National Labor Relations Board (Board), 196 N.L.R.B. No. 122, 80 L.R.R.M. 1172 (1972), wherein the Board found Fairmont in violation of Secs. 8(a)(5) and (1) of the National Labor Relations Act. 29 U.S.C. Secs. 158(a)(5) and (1).  The Board has cross-applied for enforcement.  We deny enforcement of that order.

2
This case involves the right of an employer (Fairmont) to withdraw from a multiemployer bargaining unit after negotiations have begun but before an agreement has been reached.  Two central issues are raised by Fairmont.  The first is whether there is substantial evidence on the record as a whole to support the Board's finding that no impasse had been reached in negotiations between the multiemployer bargaining unit, of which Fairmont was a member, and the Teamsters Local 471 (Union), and thus that Fairmont's withdrawal was untimely.  The second is whether there is substantial evidence to support the Board's finding that the Union did not consent to Fairmont's withdrawal.

3
Fairmont has had a collective bargaining relationship with the Union since 1957.  Its 1965-1967 and 1967-1969 contracts were negotiated as a member of the Minneapolis Milk Dealers Association.  In negotiations for the 1969-1971 contract, however, Fairmont bargained separately in an unsuccessful attempt to eliminate the wholesale load restrictions present in the contracts negotiated by the Association.

4
These load limits, which were based upon units representing a quantity of dairy products, were set at a 3,500 unit per day average.  Fairmont believed that because of these limits, it was prevented from delivering a commercially adequate volume of dairy products, thereby placing it at a "severe competitive disadvantage."  Prior to collective bargaining for the contract term beginning May 1, 1971, Fairmont made its position regarding elimination of load limits clear to the Union.

5
It likewise made its position clear to the Association members, who agreed they would insist on eliminating the load limits from the 1971-1973 contract if Fairmont would rejoin the group.  As a result, Fairmont authorized, by letter, the Association's negotiating committee to negotiate on its behalf, but expressly refused to be committed to any particular contract provision "prior to our specific approval."  This reservation of authority was not communicated to the Union prior to an agreement being reached.

6
Formal negotiations commenced on March 30, 1971, when the Association's proposals, including the elimination of load limits, were presented to the Union.  Six subsequent meetings were held, but very little was agreed upon.  The last of these meetings occurred on April 30, the contract termination date.  Both state and federal mediators were present, as they had been for several previous meetings.  Moran, the union representative, testified that by approximately 11:30 p. m. "we knew that we were so far apart, we couldn't reach an agreement by midnight."  Consequently, he sent the union committee members back to the union office to prepare for a strike.  Moran and another union representative "stayed there to continue the negotiations, if any."

7
The testimony regarding subsequent transactions is somewhat conflicting, but it does show that the Union and Association were still apart on at least fifteen issues after midnight.  Moran told the negotiating committee that he would be in his office that afternoon.  He left, and the Union struck the employer-members' plants at 2:00 a.m. That afternoon, May 1, Hadlick, the Association's chief negotiator, accompanied by the mediators, delivered a "best and final" offer to Moran at his office.  This offer contained a compromise by raising the load limits from 3,500 units to 5,500 units, or in the alternative an hourly rate with only two stops; however, it was rejected by the Union.

8
On May 2 and 3 the Union negotiated separately with three individual employer-members, who were then allowed to resume operations.  The load limits set by these agreements, two of which were oral and one of which was written, remained at 3,500 units "unless changes were made in negotiations with the Minneapolis Milk Dealers Assn."

9
In response to an attempt by the mediators to arrange a meeting with the Union on May 3, the multiemployer group met.  Several members indicated a willingness to reach an agreement with the Union as three had already done.  Fairmont, however, refused to compromise on the load limit issue and withdrew from negotiations.  During a series of meetings with the Union that evening, Hadlick told the union representative, Moran, that Fairmont "had 'walked out' of the negotiations and that they refused to be bound by the terms of any collective-bargaining agreement that might be negotiated."  Moran was also informed that Fairmont was still a member of the Association, but he conceded that this meant it would pay its share of the negotiation expenses.

10
At about 3:30 a.m. on May 4, the 1971-1973 contract was signed by the Union and all members of the Association except Fairmont.  The load limit finally agreed upon was a compromise between the earlier positions of both the Union and the Association.

11
Later that day, the labor relations manager of Fairmont indicated to Moran by telephone a willingness to meet with the Union to negotiate an agreement.  Meetings were held on May 5, 7 and 10; Fairmont refused to sign a contract providing for load limits, while the Union insisted that Fairmont sign the contract as agreed upon with the other employers.  A charge was filed on May 11 alleging that Fairmont was obligated to sign the agreement negotiated by the Association, and a complaint issued June 11.

12
By letter dated May 24, Fairmont formally advised the Union that it had been forced to withdraw from the negotiating sessions on May 3, 1971, because of the load restriction issue, and that its withdrawal was in accord with its agreement with the Association not to be committed to any contract provision without prior specific approval.  The Union replied by two telegrams, on May 27 and 28.  The first telegram merely expressed a willingness to meet at any time.  The second of these telegrams advised that the Union felt the contract with the Association was binding upon Fairmont.

Impasse

13
When an impasse in negotiations is reached, withdrawal by a member of a multiemployer bargaining group is excused.  See Morand Bros. Beverage Co., 91 N.L.R.B. 409, 26 L.R.R.M. 1501, 1506 (1950), enforced, 190 F.2d 576 (7th Cir.1951); cf.  Ice Cream Council, Inc., 145 N.L.R.B. 865, 870, 55 L.R.R.M. 1059, 1061 (1964).  This means, of course, that it cannot be bound by a subsequent agreement between a union, having knowledge of the withdrawal, and the other employers.

14
Whether an impasse was reached is a question of fact, to which no mechanical definition can be applied.  And while the Board's finding of fact is entitled to great weight, it must be supported by substantial evidence.  We conclude that the record fails to support the Board's finding that no impasse was reached in this case.  On the contrary, the evidence establishes that Fairmont bargained in good faith over a crucial issue, and the parties had exhausted the prospects of reaching an agreement at the time of withdrawal.

15
Moran's testimony that they were so far apart on April 30 that they "would be forced to have a work stoppage," and the ensuing strike, indicates that the strike may have been more than a mere bargaining stratagem.  See Bi-Rite Foods, Inc., 147 N.L.R.B. 59, 56 L.R.R. M. 1150 (1964).  The evidence is clear that both parties considered "final" offers, and upon rejection by both, the Union bargained separately with three individual employers.  We find this to be persuasive evidence that an impasse was reached.

16
"Whether a bargaining impasse exists is a matter of judgment.  The bargaining history, the good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of negotiations, are all relevant factors to be considered in deciding whether an impasse in bargaining existed."  Taft Broadcasting Co., 163 N.L.R.B. 475, 64 L.R.R.M. 1386, 1388 (1967), enforced, 129 U.S.App.D.C. 399, 395 F.2d 622.

17
When viewed from the vantage of both of the parties, the record is clear that as long as Fairmont remained a member of the Association, the parties were irreconcilable on the load limit issue.  The only way to break the impasse was by the withdrawal of Fairmont.  Other members of the group invited Fairmont to leave for this reason and Fairmont did leave for that reason.  As indicated by NLRB Chairman Miller in his dissent, it seems particularly incongruous under these circumstances to find Fairmont guilty of bad-faith bargaining.

18
Because an impasse had been reached, Fairmont's withdrawal was timely.  It therefore was not a violation of 8(a)(5) and (1) of the Act to refuse to be bound by an agreement reached by the Union and the multiemployer group after withdrawl with the Union's knowledge.

Consent

19
Not only had an impasse in negotiations been reached, but we conclude that the evidence shows the Union consented to Fairmont's withdrawal.  Thus, the Union cannot be heard to complain that the withdrawal was "untimely."  See N.L.R.B. v. Sheridan Creations, Inc., 357 F.2d 245, 247 (2d Cir.1966); C & M Construction Co., 147 N.L.R.B. 893, 56 L.R.R.M. 1270, 1271 (1964).

20
Moran made no objection to Fairmont's withdrawal when he was so informed verbally prior to reaching an agreement with the Association.  Although the Union was under no affirmative duty to formally protest the withdrawal, see N.L.R.B. v. John J. Corbett Press, Inc., 401 F.2d 673, 675 (2d Cir. 1968), its course of conduct constituted an implied consent.  See Publicity Engravers, Inc., 161 N.L.R.B. 221, 63 L.R. R.M. 1236 (1966).  It is clear from the record that Moran knew that Fairmont was the stumbling block on the load limit issue.  Yet he was willing to accept quietly the benefit to be obtained by Fairmont's withdrawal, in the form of a quick agreement to a contract, without insisting then that Fairmont sign the contract with the other employers and without even indicating to anyone at the time that he expected Fairmont to be bound.

21
The Union's willingness to bargain with Fairmont even after the agreement was reached, as well as its willingness to bargain with the other individual employers during the impasse,1 is further evidence of acquiescence.  Atlas Sheet Metal Workers, Inc., 148 N.L. R.B. 27, 29, 56 L.R.R.M. 1442, 1443 (1964).  Moran testified that "[t]he purpose of the meeting [on May 5], in our estimation, was to come to an agreement on the contract."  At the meetings between the Union and Fairmont, which were attended by the mediators, many economic issues were discussed.  Therefore, the Union did more than simply demand that Fairmont sign the agreement executed with the Association, all that would have been required had the Union felt Fairmont was still a member of the Association.  See C & M Construction Co., supra, 56 L.R.R.M. at 1272.

22
Chairman Miller in his dissent stated the issues clearly and succinctly when he said:

23
"It seems clear to me that the issue of load restrictions was a stumbling block to the negotiations, and it seems equally clear to me that all parties knew that Respondent's firm position on this issue was not fully shared by other members of the group.  As that situation became clear and as the parties neared their negotiating deadline, two things occurred . . . one the 'final' offer of the multiemployer negotiators failed to achieve a recommendation by the union negotiating committee and all concerned knew-as any experienced negotiators knows-that as a result the final offer was doomed to rejection and a strike was imminent.  Thus at that point, an impasse existed.

24
"It is true that as events unfolded, the impasse was shortlived.  But why? Again, it seems clear to me that a change in the position of the employers' negotiators on the issue of load restrictions was a sine qua non for breaking the impasse.  And that became possible through Respondent's decision to go it alone on this issue and to withdraw from the group, thus clearing the way for a resolution of this issue by those who remained in the multiemployer negotiations.

25
"Under these circumstances, the failure of the union to protest Respondent's withdrawal is quite understandable, but as one understands it in this light, it is equally clear that its silence meant, and was indeed intended to mean, acquiescence.

26
"And it seems particularly incongruous for this Board to find a defecting member of a bargaining group guilty of a bad-faith bargaining when, as here, his leaving the negotiations permitted . . . and indeed was essential to . . . further progress toward meaningful bargaining between the employer group and the union."

27
For these reasons, we conclude that the Board's finding that there was no impasse as well as no consent on the part of the Union is not supported by the record.  Consequently, Fairmont's withdrawal was excused, and it was not therefore in violation of 8(a)(5) and (1).

28
Enforcement denied.

1
 We find it particularly incongruous that the Board refused to uphold the withdrawal of Fairmont from the negotiations while impliedly approving the Union's negotiation of separate contracts with three of the members of the Association during the impasse.  While it is claimed that these contracts were merely interim agreements which were intended to be merged later into the Association agreement, the written agreement with Country House, Inc. was used as the basis for withdrawing the pickets from that employer's premises and contains no such reservation except as to the load limit issue.  The balance of that written agreement clearly binds both the Union and Country House to specific changes in the existing agreement for a two-year period from May 1, 1971, through April 30, 1973; and if that agreement was merged into the Association agreement later negotiated, it was done by oral agreement of the parties thereto


       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
                 ______________________

                   JULIO VILLARS,
                   Plaintiff-Appellant,

                            v.

                   UNITED STATES,
                   Defendant-Appellee.
                 ______________________

                       2014-5124
                 ______________________

    Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00363-EJD, Judge Edward J.
Damich.
               ______________________

              Decided: November 7, 2014
               ______________________

   JULIO VILLARS, of Chicago, Illinois, pro se.

    NATHANAEL B. YALE, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for defendant-appellee.
With him on the brief were JOYCE R. BRANDA, Acting
Assistant Attorney General, ROBERT E. KIRSCHMAN, JR.,
Director, and STEVEN J. GILLINGHAM, Assistant Director.
                 ______________________
2                                              VILLARS   v. US

    Before TARANTO, BRYSON, and CHEN, Circuit Judges.
PER CURIAM.
    Julio Villars sued the United States in the Court of
Federal Claims, invoking the Tucker Act, 28 U.S.C.
§ 1491, for jurisdiction. His complaint alleges that he
entered into a contract with federal law-enforcement
authorities to serve as an informant for the government,
in exchange for which the government promised him
monetary compensation and assistance in obtaining
lawful permanent residency. Alleging that the govern-
ment did not live up to its end of the bargain, the com-
plaint states causes of action for breach of contract. It
also alleges an unlawful taking.
    The Court of Federal Claims dismissed the contract
claims based on two distinct but related premises: it
construed the alleged contract as limited to a government
promise of immigration assistance, and it construed the
complaint as requesting no relief other than an “order [to]
the Attorney General of the United States to issue” Mr.
Villars a particular visa. Villars v. United States, No. 13-
363 C, at 4–5 (June 4, 2014). On those bases, the court
seemed to conclude that the contract did not carry the
usual implied monetary remedy for breach and clearly
concluded that the complaint in this case did not ask for
monetary damages, but only for specific performance, as
relief. Id. Accordingly, the court dismissed the contract
claims for lack of subject-matter jurisdiction under the
Tucker Act, which applies to a contract claim only if the
contract carries monetary remedies for breach and if the
claim seeks money damages. Id. The court also dis-
missed the takings claims for failure to state a claim upon
which relief can be granted. Id. at 5–6.
    We reverse the jurisdictional dismissal of the contract
claim, rejecting both premises of the dismissal. Mr.
Villars has not appealed the dismissal of the takings
claim, so that dismissal stands.
VILLARS   v. US                                          3

                       BACKGROUND
    The Court of Federal Claims expressly stated that it
was granting the government’s “motions to dismiss” under
Rule 12(b) of the Rules of the Court of Federal Claims
(RCFC). Accordingly, in reviewing the dismissal on
appeal, we take the facts from the complaint. We read
the complaint for what it fairly indicates and with the pro
se status of Mr. Villars in mind. See Erickson v. Pardus,
551 U.S. 89, 94 (2007). At this stage, we must assume the
truth of the alleged facts.
    Mr. Villars is a citizen of Honduras who has lived in
Chicago, Illinois, since 1995. In early 2008, Mr. Villars
was arrested by the Bureau of Immigration and Customs
Enforcement (ICE)—part of the federal government’s
Department of Homeland Security—and placed in deten-
tion to await removal to Honduras. He subsequently
wrote two letters, one to the Federal Bureau of Investiga-
tion (FBI) and one to the Drug Enforcement Agency
(DEA), offering to serve as an informant if the govern-
ment would help him obtain an informant Green Card, or
“S visa.” See 8 U.S.C. § 1101(a)(15)(S) (granting the
Attorney General authority to issue nonimmigrant visas
to foreign nationals who assist federal or state law en-
forcement authorities).
    A special agent from the FBI and an unnamed federal
prosecutor came to see Mr. Villars and sought his assis-
tance as an informant in targeting drug-trafficking organ-
izations. The government agents assured him that he
would not be removed to Honduras and entered into a
“contractual agreement,” under which they would (a)
arrange for him to obtain lawful permanent residence, (b)
reimburse him for expenses incurred during his work as
an informant, (c) pay him for his work, at least $5,000 per
case or a lump sum (perhaps a percentage) in case of a big
seizure, and compensate him for any loss he incurred in
his work, and (d) assist him to relocate and change his
4                                              VILLARS   v. US

identity in the event his safety was compromised. J.A. 5
(¶¶ 17, 19), 11–12 (¶ 56). Higher government officials
provided authorization for or ratification of the agree-
ment, and the government accepted Mr. Villars’s services
for more than two years, paying him some compensation,
and adjusting his immigration status on three occasions
to ensure that he remained in the United States. Id. at 2
(¶ 6), 6–7 (¶¶ 23-32).
    From 2008 to 2010, and under the direction of federal
authorities, Mr. Villars “used his trucking company to
transport drugs and money, record incriminating conver-
sations, ma[ke] drug buys, [and create] wire and video
recordings.” Id. at 3 (¶ 7). His work resulted in arrests of
30 suspects and the seizure of $750,000 in cash and large
quantities of illegal drugs.
    U.S. immigration authorities eventually revoked Mr.
Villars’s “deferred action” status, and apparently (the
complaint suggests) he became at risk of deportation. The
government detained him from mid-November 2010 to
late-January 2011 as a material witness in a criminal
prosecution of others. At some point, because of the
status change, and perhaps because of his detention, Mr.
Villars’s truck was repossessed and his family evicted
from their home.
    In May 2013, Mr. Villars filed suit in the Court of
Federal Claims, alleging an unlawful taking in one count
and breach of contract in three counts. 1 As to the contract
claims, the complaint alleges that “the government has
breached the agreement[] by failing to compensate Mr.
Villars for [his] services[ and] by failing to provide[] Mr.
Villars with legal permanent residence.” J.A. 13 (¶ 66).

    1   The Court of Federal Claims treated three counts
of the complaint as contract claims, and the government
has not disputed that treatment on this appeal.
VILLARS   v. US                                            5

The complaint “seek[s] compensation/damages and relief
for” breach of contract. J.A. 3 (¶ 8). Two of the three
claims treated as contract claims ask for actual, inci-
dental, and consequential damages (J.A. 14 (¶¶ 69, 73))
and the third asks for exemplary or punitive damages of
$1,000,000 (J.A. 16 (¶ 80)). The general prayer for relief
seeks “damages in an amount to be determine at trial for
[the alleged] violations [in] an amount not less than
$2,250,000. J.A. 16 (¶ 82).
    In September 2013, the government filed a motion
seeking dismissal on the merits under RCFC 12(b)(6) or,
in the alternative, summary judgment under RCFC 56. It
did not question the court’s jurisdiction. Regarding the
contract claims, it argued that there was no actual or
implied authority for, or proper ratification of, the alleged
contract.
    In late April 2014, the Court of Federal Claims raised
a jurisdictional issue on its own. It stated that the com-
plaint “appears to request that this Court order the
Attorney General to issue an S visa which would enable
Plaintiff to later become a legal permanent resident.” J.A.
35. Saying that it “doubts it has jurisdiction to order such
relief,” the court ordered supplemental briefing on the
issue. Id. Mr. Villars did not respond. See Villars, No.
13-363 C, at 3. The government responded in early May
2014 by filing, under RCFC 12(b)(1), a new motion to
dismiss the contract claims for lack of subject-matter
jurisdiction. J.A. 36–41.
    The court dismissed the action on June 4, 2014. It
held that it lacked jurisdiction over the contract claims,
for the reasons advanced in the government’s new juris-
dictional motion. Citing Mr. Villars’s statement in his
complaint that his “only purpose” in entering the alleged
contract was to secure lawful residency status, J.A. 11 (¶
55), the court concluded (seemingly) that monetary reme-
dies were not contemplated for the alleged contract and
6                                               VILLARS   v. US

(definitely) that the complaint sought only specific per-
formance—in either event taking the contract claims
outside the Tucker Act. Villars, No. 13-363 C, at 4–5.
The court also held that the takings claim (over which
jurisdiction was unquestioned) failed to state a claim on
which relief could be granted. Id. at 5–6.
    Mr. Villars timely appealed. He has presented only
the contract claims on appeal. We have jurisdiction over
this appeal under 28 U.S.C. § 1295(a)(3).
                        DISCUSSION
    We review de novo the Court of Federal Claims’ dis-
missal for lack of subject-matter jurisdiction and for
failure to state a claim. Gallo v. United States, 529 F.3d
1345, 1348 (Fed. Cir. 2008).
     The Tucker Act authorizes the court to hear claims
against the United States for money damages. See 28
U.S.C. § 1491(a)(1). The statute “does not create any
substantive right enforceable against the United States
for money damages,” a right that must be found outside
the Tucker Act itself. United States v. Testan, 424 U.S.
392, 398 (1976). “The other source of law need not explic-
itly provide that the right or duty it creates is enforceable
through a suit for damages,” but only that it “can fairly be
interpreted as mandating compensation by the Federal
Government.” United States v. Navajo Nation, 556 U.S.
287, 291 (2009) (internal quotation marks omitted); see
United States v. Mitchell, 463 U.S. 206, 216–17 (1983);
Testan, 424 U.S. at 400; Eastport S.S. Corp. v. United
States, 372 F.2d 1002, 1009 (Ct. Cl. 1967). And a contract
claim presumptively meets that standard: “when a breach
of contract claim is brought in the Court of Federal
Claims under the Tucker Act, the plaintiff comes armed
with the presumption that money damages are available,
so that normally no further inquiry is required.” Holmes
v. United States, 657 F.3d 1303, 1314 (Fed. Cir. 2011).
The claim must, however, seek money damages to come
VILLARS   v. US                                           7

within the Tucker Act, though not necessarily only money
damages. See Lee v. Thornton, 420 U.S. 139, 140 (1975);
Gonzales & Gonzales Bond and Ins. Agency, Inc. v. Dep’t
of Homeland Security, 490 F.3d 940, 943 (Fed. Cir. 2007).
     Mr. Villars’s contract claims meet the Tucker Act’s
standard. To begin with, the Court of Federal Claims
incorrectly characterized the relief sought. The complaint
expressly and repeatedly asks for monetary relief, as
described supra. Even the part of the request that would
cover compensation promised but not paid is a request for
money damages. See Great-W. Life & Annuity Ins. Co. v.
Knudson, 534 U.S. 204, 211 (2002) (“ ‘suits seeking . . . to
compel the defendant to pay a sum of money to the plain-
tiff are suits for “money damages,” as that phrase has
traditionally been applied, since they seek no more than
compensation for loss resulting from the defendant’s
breach of legal duty.’ ”) (quoting Bowen v. Massachusetts,
487 U.S. 879, 918–19 (1988) (Scalia, J., dissenting)). And
the damages requests plainly are not limited to those
amounts, covering actual, incidental, consequential, and
exemplary or punitive damages.
    That is enough to satisfy the relief-request part of the
jurisdictional standard. It is hardly clear that Mr. Vil-
lars’s complaint asks for an order directed to the Attorney
General to issue him a visa, as the Court of Federal
Claims concluded, or for any other non-monetary relief.
But it does not matter if it does ask for such relief. The
presence of such a nonmonetary-relief request would not
alter the fact that the complaint expressly and repeatedly
seeks money damages. The monetary-damages request
suffices under the Tucker Act. See Voge v. United States,
844 F.2d 776, 779 (Fed. Cir. 1988) (affirming the Claims
Court’s jurisdiction over plaintiff’s request for money
damages under the Tucker Act even where court lacked
authority to grant nonmonetary relief arising out of the
same controversy); Doe v. Civiletti, 635 F.2d 88, 95 (2d
Cir. 1980) (affirming trial court’s jurisdiction over plain-
8                                              VILLARS   v. US

tiff’s damages requests under Little Tucker Act even
where court lacked jurisdiction to grant equitable relief
arising from same breach claim); Speed v. United States,
97 Fed. Cl. 58, 68 (Fed. Cl. 2011) (denying government’s
motion to dismiss plaintiff’s Tucker Act claims under
RCFC 12(b)(1), but limiting her remedies to money dam-
ages, even though she requested both money damages and
specific performance); see also Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 559 (2005) (“The
presence of other claims in the complaint, over which the
district court may lack original jurisdiction, is of no mo-
ment. If the court has original jurisdiction over a single
claim in the complaint, it has original jurisdiction over a
‘civil action’ within the meaning of § 1367(a), even if the
civil action over which it has jurisdiction comprises fewer
claims than were included in the complaint.”).
    The Court of Federal Claims was also wrong to the ex-
tent that, beyond its reliance on what relief it saw re-
quested in the complaint, it found no jurisdiction by
deeming the underlying alleged contract not to be one
that carried a monetary remedy for its breach. Mr. Vil-
lars is entitled to the presumption, as Holmes makes
clear, that monetary relief is available for the alleged
contract. And there is nothing in the contract as alleged
that overcomes that presumption. Indeed, as recited
supra, the alleged contract includes both monetary and
non-monetary performance obligations by the govern-
ment, including payment for services to be rendered and
compensation for loss incurred in performing services.
Neither the Court of Federal Claims nor the government
has cited any authority for treating that kind of contract
as an exception to the default rule that contracts carry
monetary remedies for their breach.
    In nevertheless concluding that the “contract never
contemplated monetary damages,” Villars, at 5, the Court
of Federal Claims said nothing about the terms of the
contract alleged in the complaint. Instead, it relied solely
VILLARS   v. US                                            9

on the complaint’s statement that Mr. Villars’s “only
purpose” in entering the contract was to “reap the
[i]mmigration benefits” from getting an S visa and “be-
com[ing a] legal permanent resident. J.A. 11 (¶ 55).
Villars, No. 13-363 C, at 5. But the statement of an
essential, even sole, motivation for entering into a con-
tract cannot fairly be taken to erase the express allega-
tions of what terms were part of the deal that was
actually reached. There is no necessary contradiction.
Especially given that the claimant is pro se, the com-
plaint’s express allegations of the terms of the contract
must control the issue on a motion to dismiss.
                       CONCLUSION
    The judgment of the Court of Federal Claims dismiss-
ing the contract claims for lack of jurisdiction is reversed.
                       REVERSED


     Case: 17-60546      Document: 00514503214         Page: 1    Date Filed: 06/06/2018

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                Fifth Circuit

                                      No. 17-60546                              FILED
                                                                             June 6, 2018
                                                                           Lyle W. Cayce
RICHARD L. BOETA,                                                               Clerk

              Petitioner

v.

FEDERAL AVIATION ADMINISTRATION,

              Respondent

                         Appeal from the Decision of the
                       National Transportation Safety Board
                               NTSB No. EA-5800
                               NTSB No. EA-5815

Before JOLLY, JONES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Richard Boeta appeals the National Transportation Safety Board’s
(“NTSB”) order issued on remand (“Remand Order”) from this court and its
dismissal of his motion for reconsideration of that order. Boeta argues that the
Remand Order fails to comply with this court’s mandate directing it to expunge
the Federal Aviation Administration’s (“FAA”) suspension of his air transport

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-60546     Document: 00514503214      Page: 2   Date Filed: 06/06/2018

                                  No. 17-60546
pilot certificate. See Boeta v. Fed. Aviation Admin., 831 F.3d 636, 647–48 (5th
Cir. 2016). For the following reasons, we grant Boeta’s petition for review of
the Remand Order, vacate the Remand Order, and remand to the NTSB to
expunge the suspension. We deny as moot Boeta’s petition for review of the
NTSB’s order dismissing his motion for reconsideration.
                  I. Factual and Procedural Background
      Our prior opinion in Boeta sets out in detail the facts underlying this
appeal, so we only briefly summarize them here. See id. at 638–41. The FAA
suspended Boeta’s air transport pilot certificate, citing the violation of aviation
regulations. Boeta appealed and the NTSB affirmed an Administrative Law
Judge’s decision to uphold the suspension. Boeta then appealed to this court,
arguing, inter alia, that he was entitled to a “waiver of sanction” under the
FAA’s Aviation Safety Report (“ASR”) procedures.
      Under the ASR procedures, if a pilot voluntarily submits an ASR about
a regulatory violation, “neither a civil penalty nor certificate suspension will
be imposed” if the violation was inadvertent and other criteria are met. See
Aviation Safety Reporting Program, FAA Advisory Circular No. 00-46E (2011).
The only issue on appeal to this court was whether Boeta’s violation was
inadvertent. Boeta, 881 F.3d at 642. We concluded that Boeta’s violation was
inadvertent and that he was therefore “entitled to waiver of all sanctions,”
including the suspension of his pilot certificate. Id. at 647. We remanded to
the NTSB “with instructions to expunge its suspension of Boeta’s said
certificate.” Id. at 647–48.
      The NTSB subsequently issued its Remand Order, ordering: (1) reversal
of the Administrative Law Judge’s decision that Boeta was ineligible for a
waiver of sanction; and (2) waiver of the suspension of Boeta’s certificate.
Boeta filed a motion for reconsideration, asking the NTSB to modify the
Remand Order so that it expressly ordered the suspension expunged from his
                                        2
     Case: 17-60546       Document: 00514503214         Page: 3     Date Filed: 06/06/2018

                                       No. 17-60546
pilot certificate, in accordance with our mandate. The NTSB dismissed Boeta’s
motion for reconsideration as procedurally barred for failure to timely serve
the FAA. The NTSB also concluded that, even if Boeta had timely served the
FAA, it would reject his motion on the merits. Boeta filed a petition for review
in this court, appealing the Remand Order and denial of his motion for
reconsideration.
                                    II. Jurisdiction
       We have jurisdiction to hear appeals from “final” orders of the NTSB. 49
U.S.C. § 1153(a); 49 C.F.R. § 821.64. A party aggrieved by such orders may file
a petition for review in this court within sixty days after the order is issued.
Id. A party’s timely filing of a motion for reconsideration, however, “renders
the underlying order nonfinal for purposes of judicial review,” thereby tolling
the time to appeal. Stone v. INS, 514 U.S. 386, 392 (1995).
       The FAA argues that Boeta’s motion for reconsideration did not toll the
time for seeking judicial review of the Remand Order because the motion was
untimely. Specifically, the FAA argues that because Boeta failed to timely
serve the motion on the FAA, his motion was untimely filed.                      Assuming
arguendo that Chevron 1 deference applies to this question, we conclude that
Boeta timely filed his motion for reconsideration for purposes of tolling.
       The NTSB issued the Remand Order on December 19, 2016, and Boeta
filed his motion for reconsideration on January 17, 2017, which is within the
thirty days required by NTSB’s rules. 49 C.F.R. § 821.50(b). On June 2, 2017,
the NTSB dismissed Boeta’s motion for reconsideration for failure to comply
with § 821.50(b)’s service requirements. Boeta asserts that he did serve the
FAA’s counsel, via first-class mail (see 49 C.F.R. 821.8(b)), on January 17, 2017

       1See Chevron, U.S.A., Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837 (1984); see
also 5 U.S.C. § 706.
                                              3
     Case: 17-60546       Document: 00514503214          Page: 4     Date Filed: 06/06/2018

                                       No. 17-60546
and stated on the certificate of service that “all counsel of record” were served.
The NTSB, however, refused to “presume service.” The NTSB, however, did
not make factual findings as to Boeta’s counsel’s truthfulness in stating that
he did serve the FAA’s counsel.
       Even assuming arguendo that Boeta untimely served the FAA, it does
not follow that he untimely filed his motion for reconsideration. Indeed, the
NTSB order itself states, “[Boeta’s] petition [for reconsideration] was filed
timely.” Additionally, the NTSB rules state that “[t]he filing of a petition [for
reconsideration] shall operate to stay the effective date of the [NTSB’s] order,
unless the [NTSB] directs otherwise.” 2 49 C.F.R. § 821.50(f) (emphasis added).
       Boeta sought review of the Remand Order in this court on July 31, 2017,
which is within sixty days of the NTSB’s dismissal of his motion for
reconsideration. Because the Remand Order was not final for purposes of
judicial review until the NTSB dismissed Boeta’s motion for reconsideration,
Boeta’s petition for judicial review was “within the time prescribed by law.”
See FED. R. APP. P. 15(a); see also 49 U.S.C. § 1153(a); cf. Collins v. Nat’l
Transp. Safety Bd., 351 F.3d 1246, 1250–51 (D.C. Cir. 2003) (concluding that
a petition for review filed forty-four days after the NTSB dismissed a motion
for reconsideration was timely assuming the motion suspended the time limit
for seeking review). This conclusion is consistent with both the NTSB rules
and the tolling rule, as in Boeta’s case “there [was] always a possibility that
the order complained of w[ould] be modified in a way which renders judicial
review unnecessary.”         Stone, 514 U.S. at 392 (quoting Outland v. Civil
Aeronautics Bd., 284 F.2d 224, 227 (D.C. Cir. 1960)). We conclude, therefore,
that we have appellate jurisdiction.

       2Nothing in the record indicates that the NTSB specifically directed that Boeta’s filing
of his motion for reconsideration would not stay the Remand Order’s effective date.
                                              4
     Case: 17-60546       Document: 00514503214         Page: 5    Date Filed: 06/06/2018

                                      No. 17-60546
                                    III. Discussion
       It is hornbook law that, on remand, a lower court must adhere to “both
the letter and the spirit” of an appellate court’s mandate, “and may not
disregard the ‘explicit directives’ of that court.” United States v. McCrimmon,
443 F.3d 454, 459 (5th Cir. 2006) (quoting United States v. Matthews, 312 F.3d
652, 658 (5th Cir. 2002)). “The mandate rule simply embodies the proposition
that ‘a [lower] court is not free to deviate from the appellate court’s mandate.’”
United States v. Becerra, 155 F.3d 740, 753 (5th Cir. 1998) (quoting Barber Int’l
Bhd. Of Boilermakers, 841 F.2d 1067, 1070 (11th Cir. 1988)), abrogated on
other grounds as recognized in United States v. Farias, 481 F.3d 289, 291–92
(5th Cir. 2007).
       Boeta argues that the NTSB failed to comply with this court’s mandate
directing it to expunge the FAA’s suspension of his air transport pilot
certificate. We agree. Our mandate remanded the case to the NTSB for
completion in accordance with this court’s opinion.                  Despite the FAA’s
argument to the contrary, we could not have been more clear in our “explicit
directive[]” that the NTSB “expunge its suspension of Boeta’s . . . certificate
and to take any other steps that might be required to complete these
proceedings.” Boeta, 831 F.3d at 647–48.
       The FAA does not deny that the Remand Order fails to expunge Boeta’s
suspension. It instead argues that expungement goes beyond the relief that
Boeta initially sought and is not possible under the ASR procedures and
statutory recordkeeping rules. 3 The proper procedure, however, for raising

       3 Certain limited exceptions to the mandate rule apply, two involving events occurring
after the mandate (not applicable here) and one involving “manifest injustice.” See Becerra,
155 F.3d at 753, 755. The FAA fails to support its claim of “manifest injustice” and, in any
event, the FAA had the means, incentive, and opportunity to present its concerns with our
instructions to “expunge” Boeta’s suspension by way of a petition for panel or en banc
rehearing or by seeking review from the United States Supreme Court. Cf. id.; United States
                                             5
     Case: 17-60546      Document: 00514503214         Page: 6    Date Filed: 06/06/2018

                                      No. 17-60546
claimed errors of fact or law in an opinion of this court is to petition for a panel
rehearing. See FED. R. APP. P. 40; 5TH CIR. R. 40.2.
       Accordingly, we VACATE the Remand Order and REMAND to the NTSB
to expunge the suspension of Boeta’s certificate consistent with this opinion
and to fully comply with our prior opinion. We DENY as moot Boeta’s petition
for review of the NTSB’s order denying his motion for reconsideration.

v. Lee, 358 F.3d 315, 321 (5th Cir. 2004) (stating that the mandate rule “bars litigation of
issues . . . foregone on appeal or otherwise waived”).
                                             6


268 F.2d 899
106 U.S.App.D.C. 24
Rollan V. FOREMAN, Sr., Appellantv.UNITED STATES of America, Appellee.
No. 15007.
United States Court of Appeals District of Columbia Circuit.
Argued June 19, 1959.Decided June 25, 1959.

Mr. Arthur E. Neuman, Washington, D.C.  (appointed by the District Court), for appellant.
Mr. William W. Greenhalgh, Asst. U.S. Atty., for appellee.  Messrs. Oliver Gasch, U.S. Atty., and Carl W. Belcher and Edward C. O'Connell, Asst. U.S. Attys., were on the brief for appellee.
Before WILBUR K. MILLER, FAHY and DANAHER, Circuit Judges.
PER CURIAM.

1
Rollan V. Foreman, Sr., was convicted of manslaughter.  He was the caretaker of a cemetery and fired his gun toward certain small boys who were intruders.  A nine-year-old lad was killed.

2
We have carefully considered his points on appeal but find no error.

3
Affirmed.


130 A.2d 781 (1957)
Silas GOODALL, Appellant,
v.
FRANK R. JELLEFF, Inc., a corporation, Appellee.
No. 1929.
Municipal Court of Appeals for the District of Columbia.
Argued February 11, 1957.
Decided April 12, 1957.
*782 Barrington D. Parker, Washington, D. C., with whom George A. Parker, Washington, D. C., was on the brief, for appellant.
Charles E. Channing, Jr., Washington, D. C., with whom Hugh Lynch, Jr., Washington, D. C., was on the brief, for appellee.
Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.
QUINN, Associate Judge.
Appellant's complaint was dismissed on oral motion at the pretrial hearing for failure to state a cause of action. The pleading was denominated, "Complaint for Damages Abuse of Civil Process," and charged that appellee, a corporation, wrongfully filed a complaint on January 15, 1953, in the Municipal Court, against appellant and his former wife for the "balance due on merchandise purchased from [appellee] by defendants." Appellant alleged that service on him was made by leaving the suit papers with his former wife at her home where he never lived. Judgment by default in favor of appellee was entered "on March 3, 1956 [sic],"[1] and docketed in the United States District Court for the District of Columbia on September 29, 1955.
Appellant further alleged that his former wife alone had made the purchases in question and that she had informed appellee he was not to be responsible for her debts; notwithstanding this knowledge, appellee proceeded with its action. When appellant attempted to secure credit at various business establishments, he was unsuccessful due to the judgment of record. On November 12, 1955, appellee filed a praecipe in the United States District Court indicating that the judgment was settled and satisfied as to appellant, but did nothing to remove the judgment from the Municipal Court docket. As a result, appellant has been embarrassed and humiliated and has suffered mental anguish and "a complete impairment of his credit."
We believe that the trial court acted correctly in dismissing the complaint. As we have stated before,
"* * * the right to charge an abuse of process arises when there has been a perversion of court processes to accomplish some end which the process was not intended by law to accomplish, or which compels the party against whom it has been used to do some collateral thing which he could not legally and regularly be compelled to do. * * *"[2]
Further, "The gist of the action for abuse of process lies in the improper use of process after it is issued."[3] Proper use of the machinery of the law, though with an improper motive, is not tortious; only when the process is used to accomplish some end outside of its regular purview does a cause of action arise.[4] Here, appellant claims nothing more than that appellee obtained a judgment, based on an unfounded claim, which is still outstanding. No use of process has been alleged which was irregular.
Affirmed.
NOTES
[1]  According to the records of the Municipal Court, the judgment was entered on March 3, 1953.
[2]  Hall v. Field Enterprises, D.C.Mun.App. 1953, 94 A.2d 479, 481.
[3]  Hauser v. Bartow, 1937, 273 N.Y. 370, 7 N.E.2d 268. 269.
[4]  Hauser v. Bartow, supra, note 3.


415 F.Supp.2d 244 (2006)
Elio ALBANESE, Petitioner,
v.
UNITED STATES of America, Respondent.
Nos. 01 CR 1121, 03 CV 6326.
United States District Court, S.D. New York.
October 6, 2005.
*245 Elio Albanese, Lewisburg, PA, pro se.

ORDER DENYING MOTION TO CORRECT SENTENCE
McMAHON, District Judge.
Elio Albanese pled guilty before the Honorable Allen G. Schwartz to Count One of Indictment 01 CR 1121, charging him with conspiracy to commit robbery in violation of Title 18 Unites States Code, Section 1951. Judge Schwartz sentenced Albanese, principally, to a term of 70 months' imprisonment, a term of supervised release of 5 years, and to pay a special assessment of $100.
On August 21, 2003, Albanese filed a motion pursuant to 28 U.S.C. § 2255 for correction of his sentence on the ground that his court-appointed attorney rendered ineffective assistance of counsel. On October 23, 2003, petitioner sought leave to amend his petition to add a claim that the Government failed to meet its burden of proof as to the amount of loss attributable to him. The Court granted petitioner leave to amend and considered petitioner's request for relief on both grounds. On December 30, 2003, the Court dismissed Albanese's petition. On November 29, 2004, the Second Circuit remanded the petition to this Court for the limited purpose of considering Albanese's claim that his conviction and sentence should be vacated due to the fact that his attorney provided ineffective assistance in advising him to enter a plea agreement with the Government.
I asked the Government and the defendant to submit memoranda on the ineffective assistance of counsel issue, and both parties have complied. Albanese claims that his attorney was ineffective for two reasons: (i) because his attorney advised him to accept a plea agreement that contained a stipulated loss amount, for sentencing purposes, of $1.5 million to $2.5 million; and (ii) because his attorney did not file a timely notice of appeal regarding the District Judge's finding of the appropriate calculation of Albanese's Criminal History Category at his sentencing. The Government opposes the motion and asks that the Court deny the motion on the merits, without a hearing.
Elio Albanese was charged in Counts One and Two along with co-defendants Carmine Russo, Joseph Savarese, Nicholas *246 Fiorello and Anthony Campanelli with plotting, and taking substantial steps toward committing, an armed robbery of a credit union located within the New York Times Company's production plant in Queens, New York, in violation of Title 18 U.S.C. § 1951 (Hobbs Act Robbery). Each of the defendants pleaded guilty before the Honorable Allen G. Schwartz to Hobbs Act Robbery, except for Campanelli, who proceeded to trial before the Honorable Charles S. Haight, after the death of Judge Schwartz. Campanelli was convicted on the conspiracy count but was acquitted of the Hobbs Act robbery counts.
The evidence at Campanelli's trial showed that an undercover detective and a cooperating witness had more than a dozen lengthy meetings with Russo, Albanese, and Fiorello to plot the robbery. The tape recordings from these meetings memorialize inter alia: a group discussion over a floor-plan map of the target facility and its credit union which had been drawn by Campanelli; defendant's assessment of the company's security capabilities, including which guards were likely to be armed; discussions about the amount of money available on different days of the week; and assurances from Russo and Albanese that they would be ready to use firearms during the robbery. In addition, during the course of the conspiracy, the defendant's obtained New York Times uniforms, uniform patches and employee parking passes for use during the robbery from Campanelli. On or about February 7, 2001, Russo and Albanese, along with the undercover detective and cooperating witness, drove around the perimeter of the Times facility late at night, looking for weakness in security and for the best avenues of escape.
The robbery coconspirators were either members or associates of two "downtown" crews of the Genovese Crime Family of La Costra Nostra ("LCN"). The evidence showed that Savarese, who did not attend the group planning meetings, but met separately with the undercover detective to assess the progress of the plan and provide instruction, was a member of a crew headed by Genovese Capo, Rosario Gangi. Based on their recorded conversations discussing the robbery, the coconspirators expected to steal in excess of $2 million. Russo and Albanese were members of another crew of the Genovese Crime Family.
The evidence showed that the robbery was sanctioned by LCN higher-ups and was put on hold by Gangi, the Capo, after approximately 40 Genovese members and Associates were arrested in April 2001, on unrelated indictments returned in the Eastern District of New York. (PSR ¶¶ 20-28; see also trial transcript of United States v. Campanelli.)
As stated above, Albanese pled guilty to conspiracy to commit Hobbs Act robbery. See transcript of Albanese's plea allocution. Albanese's plea was entered pursuant to a plea agreement with the Government dated May 15, 2002 (the "Plea Agreement").
The Plea Agreement (at page 2) contained a stipulation that the adjusted offense level for Albanese's conviction was 21. The calculations upon which this offense level was based were included in the Plea Agreement. Specifically, pursuant to U.S.S.G. § 2B3.1(a), the base offense level was 20. The parties agreed that a two-level increase in the offense level was warranted because the taking of property from a financial institution was an object of the offense, pursuant to U.S.S.G. § 2B3.1(b)(1), and a further five-level increase in the offense level was warranted because the intended loss was more than $1.5 million and less than $2.5 million, pursuant to U.S.S.G. § 2B3.1(b)(7)(F) and (G). The parties also agreed that a three-level *247 decrease in the offense level was warranted, because the defendant did not complete all of the acts the conspirators believed necessary for the successful completion of the substantive offense, pursuant to U.S.S.G. § 2X1.1(b)(2), and a further three-level reduction in the offense level was warranted for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a).
The plea agreement (at pages 3-4) also contained a stipulation concerning the defendant's Criminal History, which the parties calculated as Criminal History Category V, based on 12 Criminal History Points. In the plea agreement, the parties stipulated that the "stipulated Sentencing Guidelines range" for the defendant was 70 to 87 months' imprisonment. The plea agreement further provided, in pertinent part, that the "defendant reserves the right to seek a downward departure in his Criminal History Category from V to IV, pursuant to U.S.S.G. § 4A1.3, on the ground that his Criminal History Category significantly over-represents the seriousness of his criminal history." The Government expressly reserved the right to oppose such a motion.
Albanese was represented by counsel at the plea hearing, and Judge Schwartz conducted a thorough allocution that complied with Rule 11 of the Federal Rules of Criminal Procedure. In particular, Judge Schwartz elicited from Albanese that the defendant had discussed with his attorney how the Sentencing Guidelines might be applied to his case, and informed Albanese that Judge Schwartz was not bound by any sentencing estimates that Albanese and his attorney might have discussed. (G. Memo. 12/12/03, Ex. B at 14). Judge Schwartz informed Albanese that his case was governed by the Sentencing Guidelines and explained to him that the District Court could depart up or down from the Guidelines range under certain circumstances. Id.
Judge Schwartz then reviewed the Plea Agreement with Albanese. Judge Schwartz had Albanese confirm that he read the agreement before he signed it, that he had gone over it with his attorney, Ellyn Bank, Esq., and that Ms. Bank explained "each and every" provision of the agreement. (Id. at 15-16). Judge Schwartz then had Ms. Bank confirm the fact that Albanese had signed it, that she had in fact explained to Albanese what the agreement said and what it meant, and that she was fully satisfied that Albanese understood what the agreement said and what it meant. (Id. at 16-17).
Judge Schwartz then drew Albanese's attention to the fact that, even though the agreement contained a stipulated sentencing guidelines range of 70 to 87 months' imprisonment, the Court was not bound by the agreement, and advised Albanese that he would still be bound by his plea of guilty, even if his sentence was greater than 87 months. Id.
Subsequent to Albanese's plea and prior to sentencing, the Probation Department prepared and issued a Presentence Investigation Report ("PSR"), in which Probation calculated that Albanese's adjusted offense level was 21, that his Criminal History Category was V and that his resulting Sentencing Guidelines Range was 70 to 87 months' imprisonmentall as stipulated by the parties in the plea agreement.
At the sentencing proceeding, which was conducted on September 6th and September 19, 2002 (Id., Exhibits C and D), Albanese was again represented by Ellyn Bank. Before imposing sentence, the Court confirmed with Albanese that he had reviewed the PSR, that he had gone over its contents with his lawyer, and that he had no objections to anything contained in the *248 PSR. (Id.; Ex. C at 3). At sentencing, the defendant did not challenge the existence of the prior convictions or the facts underlying the convictions as indicated in the PSR. Furthermore, he did not challenge the application of the Guidelines to these convictions. Nonetheless, Albanese, through his attorney, argued that the result of the application of the guidelines was unwarranted, and asked for a reduction in the criminal history calculation. (Id. at 18-21). The Government opposed the defendant's motion. Judge Schwartz denied Albanese's downward departure motion. Judge Schwartz then sentenced Albanese to a serve a term of 70 months' imprisonment, followed by a term of supervised release of 5 years, and to pay a special assessment of $100.
After imposing sentence, the Court advised Albanese that he had the right to appeal if he had not already waived his right in the Plea Agreement. (G. Memo. 2/12/03, Ex. D at 15). The plea agreement in fact contained a waiver of Albanese's right to appeal his sentence (though not his conviction) if he was sentences within or below the stipulated rangewhich he was. Judge Schwartz also advised Albanese that if Ms. Bank was unavailable to represent him, the Court would appoint another attorney for him free of charge. (Id. at 15). Albanese did not appeal his conviction or sentence.
The Government has filed an affirmation from Ellyn Bank. (G.Memo. 12/12/03, Ex. E). Ms. Bank affirmed that, in her representation of Albanese, she thoroughly reviewed all of the discovery in the case and fully discussed it with Albanese. She also stated that she had many discussions in which she reviewed calculations with Albanese, and ultimately Albanese decided to accept the Government's plea offer with a stipulated Sentencing Guidelines Range of 70-87 months' imprisonment. Ms. Bank also stated that, after Albanese received the 70 months sentencewhich was the lowest possible sentence pursuant to the Sentencing Guidelines Range stipulation she advised Albanese that he had waived his right to appeal the sentence in the plea agreement. Ms. Bank affirmed that at no time during the ten days following the entry of judgment did Albanese request that she file a Notice of Appeal on his behalf.
Ms. Bank stated that many months after Albanese was sentenced, she received a call from him, in which he stated that he wanted to review with her the calculations in his plea agreement. Ms. Bank reminded Albanese that they had carefully reviewed all the relevant calculations and determined the appropriate guidelines range, and that he understood that before he signed the plea agreement and entered his plea. Ms. Bank again stated that, even during this conversation, Albanese never asked her to file a Notice of Appeal on his behalf. Id.
Ineffective Assistance of Counsel Claim
To prevail on a claim of ineffective assistance of counsel, a petitioner must: (1) overcome a strong presumption that his counsel's conduct was reasonable and show that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms;" and (2) "affirmatively prove prejudice," that is, show that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 693-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord, e.g., Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (extending Strickland standards to ineffective assistance challenge to guilty pleas); United States v. Hansel, 70 F.3d 6, 8 (2d Cir.1995) (per curiam); United States v. Vegas, 27 F.3d 773, 777 (2d Cir.1994); *249 United States v. Tarricone, 21 F.3d 474, 475 (2d Cir.1993); United States v. Eisen, 974 F.2d 246, 265-66 (2d Cir.1992). Only if both of these elements are satisfied can it be concluded that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
In analyzing a claim that counsel's performance fell short of Constitutional standards, a reviewing court "`must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' bearing in mind that `[t]here are countless ways to provide effective assistance in any given case' and that [e]ven the best criminal defense attorneys would not defend a particular client in the same way.'" United States v. Aguirre, 912 F.2d 555, 560 (2d Cir.1990) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Thus, under Strickland,
[an attorney's] strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgements support the limitations on investigation.
Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. The Second Circuit has emphasized that, "In assessing the attorney's performance, a reviewing court must judge his conduct on the basis of the facts of the particular case, `viewed as of the time of counsel's conduct,' Strickland, 466 U.S. at 690, 104 S.Ct. 2052, and may not use hindsight to second-guess his strategy choices." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994) (citing Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993)). See also Strouse v. Leonardo, 928 F.2d 548, 553 (2d Cir.1991); United States v. Jones, 918 F.2d 9, 11-12 (2d Cir.1990). Thus, a defendant cannot prevail on a claim of ineffective assistance merely because he believes that his counsel's strategy was inadequate. See, e.g., United States v. Vegas, 27 F.3d at 777; Mason v. Scully, 16 F.3d 38, 42 (2d Cir. 1994); United States v. Eisen, 974 F.2d at 265; United States v. Sanchez, 790 F.2d 245, 253 (2d Cir.1986).
For these reasons, the assessment of counsel's performance under the first prong of the Strickland test should focus on the "fundamental fairness of the proceeding whose result is being challenged." Strickland, 466 U.S. at 696, 104 S.Ct. 2052. The emphasis should not be on grading counsel's performance, but on "whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Id.
Finally, even if the reviewing court determines that an attorney's performance was objectively unreasonable and unprofessional, the prejudice component of Strickland must still be satisfied in order to warrant reversal of the defendant's conviction on ineffective assistance grounds. This second prong of Strickland requires the court to decide whether "the result of the proceeding was fundamentally unfair or unreliable." Lockhart v. Fretwell, 506 U.S. at 369, 113 S.Ct. 838. "The prejudice component of the Strickland test . . . focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Id. at 372, 113 S.Ct. 838.
Where a defendant challenges a guilty plea on the basis of alleged ineffectiveness of counsel, he must show that, but for counsel's error, there is a reasonable probability that he would not have pleaded guilty. Hill v. Lockhart, 474 U.S. at 59, *250 106 S.Ct. 366; Tate v. Wood, 963 F.2d 20, 23-24 (2d Cir.1992); Panuccio v. Kelly, 927 F.2d 106, 108 (2d Cir.1991); Mitchell v. Scully, 746 F.2d 951, 957 (2d Cir.1984). The Second Circuit has repeatedly rejected ineffective assistance claims where, as here, the petitioner in retrospect finds fault with the plea negotiated by counsel. See, e.g., Panuccio v. Kelly, 927 F.2d at 109 (rejecting claim of ineffective assistance based on counsel's failure to inform defendant of possible defense because defense would not likely have succeeded at trial and because plea substantially reduced defendant's sentencing exposure); Hayle v. United States, 815 F.2d 879, 882 (2d Cir.1987) (rejecting defendant's claim that counsel was ineffective because counsel failed to inform him that one count of indictment did not charge a federal offense; plea permitted defendant to have 62 counts of indictment dismissed); Mitchell v. Scully, 746 F.2d at 957 (2d Cir.1984) (rejecting defendant's claim that counsel was ineffective because he did not inform the defendant, prior to his pleading guilty, of an affirmative defense; counsel had every reason to think that raising defense had almost no chance of success, would expose the defendant to risk of additional punishment on other charges, with little to be gained if defense succeeded).
An attorney's failure to communicate a plea offer to his client, or to advise his client adequately about the plea offer, may constitute constitutionally deficient performance. See, e.g., Cullen v. United States, 194 F.3d at 404; United States v. Gordon, 156 F.3d 376, 380 (2d Cir.1998); Boria v. Keane, 99 F.3d 492, 496-97 (2d Cir.1996). However, to establish a Sixth Amendment violation, the defendant must establish that his attorney in fact failed to communicate a plea offer or failed to provide adequate advice about the plea offer and his sentencing exposure. United States v. Gordon, 156 F.3d at 380; Boria v. Keane, 99 F.3d at 496-98.
Even if the defendant can prove that his attorney failed to communicate a plea offer (not the case here) or failed to provide adequate advice about a plea offer, the defendant must still prove prejudice. That is, he must prove "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. 366; see also United States v. Hernandez, 242 F.3d 110, 112 (2d Cir.2001) (per curiam); Gordon, 156 F.3d at 380 (armed career criminal who faced 262-327 month sentence after trial established that he would have accepted 84-month plea offer but for defense counsel's incorrect advice that maximum sentence after trial was ten years). This burden is particularly difficult to meet where a defendant was aware of the "actual sentencing possibilities" and nevertheless decided to plead guilty. Ventura v. Meachum, 957 F.2d 1048, 1058 (2d Cir.1992) (court's conveyance at plea allocution of the actual sentencing possibilities that result from a defendant's guilty plea may correct any misrepresentation by counsel as to defendant's probable sentence); Hunter v. Fogg, 616 F.2d 55, 58 (2d Cir.1980).
In the present matter, Albanese claims his counsel committed Constitutional error by failing to challenge the determination of the relevant loss amount and the corresponding application of the 5-level enhancement for loss amount imposed pursuant to U.S.S.G. § 2B3.1(b)(7)(F) and (G), to which he expressly stipulated in the Plea Agreement. Notably, he does not argue that his plea was anything other than knowing and voluntary. Neither does he claim that he would have gone to trial but for the purported error made by his counsel in calculating *251 the loss amount to be applied to him at sentencing. He simply says that the lawyer should have challenged the accuracy of the stipulated loss amount. This fails to make out a claim for ineffective assistance of counsel, for two reasons.
To satisfy his burden to show that counsel provided ineffective assistance of counsel to such a degree that Albanese was denied his Constitutional right to effective counsel, he must make a showing "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. 366. Albanese does not even make that assertion in his papers, let alone attempt to prove it.
Additionally, Albanese's ineffective assistance claims based on his counsel's alleged failure to object to the loss amount attributed to his robbery conspiracy conviction should be rejected because the sentence was imposed in accordance with the stipulation to which Albanese agreed. Given Albanese's sworn statements during the allocution that he had gone over the Plea Agreement with his lawyer and understood every aspect of itincluding the loss amount calculation and the corresponding five level enhancementit is clear that Albanese knowingly and voluntarily agreed to abide by its terms. This is not a case in which a defendant alleges that his lawyer failed to convey the actual terms of the stipulation to him. Rather, Albanese has decided that there was an error in calculating the stipulated loss amount. But it is too late for Albanese to reach this conclusion. If Albanese had a quarrel with the loss amount in the Plea Agreement, he had to option of convincing the Government that a lower amount was appropriate. And if that strategy failed, he could have declined to enter into the agreement.
In any event, the stipulation did not control his sentence. Judge Schwartz's independent calculation of the loss amount dictated the Guidelines sentence that was imposed. His attorney could not contest the stipulated amount because, with her client's permission, she had stipulated to it! Had she stipulated to an erroneous amount, the error could have been corrected by Probation and/or the Court. Judge Schwartz advised Albanese during the plea allocution that nothing in the plea agreement (including the stipulation) was binding on the Court, and that Probation and the Court would ultimately do their own loss calculation. Which they did. But after making their own independent calculation, Probation and Judge Schwartz reached the same conclusion that the Government and Ms. Bank had reached in their plea negotiations. Thus, Albanese has not shown that he was prejudiced in any way by his lawyer's failure to go back on her (and his) stipulation and contest the loss amount.
Furthermore, the loss amount that Albanese agreed to was amply supported by the Government's evidence, including the recorded statements of Albanese and his co-conspirators, who were taped discussing the amount of money he and his co-conspirators intended to find during the course of the robbery. For example, the undercover detective, Detective Smith, was asked about his conversation with Nick Fiorello concerning the intended theft, "Did Mr. Fiorello indicate how much money he believed was available during the big score?" Detective Smith replied, "Between 2 and 6 million." (Tr. at 86; GX 20-T at 6). Detective Smith was also asked about another conversation later in the conspiracy concerning the source of the information of the "two [million dollars]" that the conspirators intended to steal, "Detective Smith, when Nick Fiorello says, *252 he said it's close to two . . . what is your understanding of who Nick Fiorello was referring to?" Detective Smith replied, "Anthony, the inside guy he has at the New York Times." (Tr. at 194, see also, GX 23-T at 12; GX 24-T at 3, 5; GX 29-T at 8; GX 33-T at 8). At one point during a recorded conversation where the Times robbery plot was being planned Albanese himself is heard saying, "I believe it is a wonderful thing. I bet there is over a million in there," referring to the Times plant. The discussion went on to describe how Albanese believed that each of the workers in the plant makes over a $1,000 a week. (See Capanelli Tr. at 276-277, GX 29-T at 8). At an earlier meeting Albanese, Russo, Fiorello, Detective Smith and the CW, while sitting at Katz's delicatessen, had a detailed discussion during which they discussed the fact that they believe there could be as much as $2.5 million in the plant. (GX 24-T at 3-4). During the discussion of the $2.5 million, Albanese asked when The Times personnel would bring the money into the plant. When told that money was brought on Monday, Albanese stated, "That means we gotta get there Monday night." (Id.).
This evidence was sufficient to convict Albanese's co-conspirator, Anthony Capanelli, of the armed robbery conspiracy in a trial before Judge Haight. Clearly, counsel did not commit an error of constitutional proportion by failing to object to a stipulated loss amount that was undergirded by the evidenceand that was, if anything, on the low side.
The Plea Agreement was negotiated between the parties, and its Guideline calculation reflects the significant concessions which were made by the Government. For example, as a result of extensive negotiations with Albanese's counsel, as well as counsel for co-defendant Carmine Russo, the Governmentnotwithstanding that the defendant conspired to commit an armed robberydid not press for a 5-level enhancement for the use of guns, an enhancement that was sought by the Government against co-defendant Anthony Capanelli and applied by Judge Haight to Capanelli's sentence.[1] The Government also declined to seek any enhancement or adjustment based on the fact that the offense contemplated the restraint of the security guards who were stationed outside of the New York Times Credit Union.
Albanese's reliance on Judge Haight's finding regarding the loss amount calculation for Capanelli, as evidence that Ms. Bank provided ineffective assistance to petitioner, is misplaced. The gravamen of Judge Haight's ruling was that the Government failed to prove to his satisfaction that the money Capanelli intended to steal was actually available at the credit union to be stolen. Thus, Judge Haight concluded that he could not determine an intended loss amount. Notwithstanding the evidence introduced showing the amount the conspirators intended to steal, Judge Haight concluded that he could not award any enhancement for loss amount because the Government failed to offer evidence about the amount of money actually present at the Credit Union at the time of the proposed robbery. Judge Haight reasoned, "If conspirators were sufficiently wicked to agree to rob a child selling lemonade at the end of her parent's driveway for 5 cents a glass, the conspirators might declare their unanimously held specific intent to steal an amount in excess of $1.5 *253 million, thereby (the Government might argue) triggering the five level adjustment the government wishes to impose on Capanelli, but the trial record would not allow it." Because the New York Times did not want the Government to proffer how much money was held at the credit union, the Government argued to Judge Haight that he should draw inferences from the facts in the record concerning the credit union. Judge Haight declined to do so.
Judge Haight was certainly persuaded to reach that conclusion with respect to defendant Capanelli because Capanelli himself was not recorded on any conversations discussing the amount of money he intended to be available to the robbers, or in any other recorded conversation. In contrast to that, as detailed above, Albanese is recorded on numerous conversations discussing the fact that he believed there to be millions of dollars present at the facility, and that the were times to carry out the robbery to maximize the robbers' chances of coming away with the most lucrative heist.
Albanese and his three coconspirators who pleaded guilty are in a very different posture than Capanelli who, after trial, contested each and every one of the adjustments sought by Government and recommended by the Probation Office. In their pleas of guilty, Albanese, Russo, Savarese, and Fiorello, each admitted that they intended to commit an armed robbery of an active Federal Credit Union. Albanese's plea agreement contained a stipulation concerning the intended loss amount from this robbery that was the product of a negotiated agreement that conferred considerable benefits on Albanese and fairly reflected the amount of money Albanese and his coconspirators intended to steal. Albanese was specifically directed by Judge Schwartz to the guideline stipulation during his guilty plea, when Judge Schwartz asked Alabanese, "At Page 2 of the [plea] agreement there is, under paragraph A, a statement of what you and the government have stipulated is your applicable guidelines offense level, and it begins by stating that your base offense level is 20. And then there are certain increases and decreases which result in the final paragraph, in an agreement, that the applicable guidelines offense level is 21, do you see that?" Albanese replied, "Yes I do your honor." The intended loss amount stipulation contained on page 2 of the plea agreement was acknowledged by Albanese during his plea of guilty and it was the same loss amount that was determined by the Probation Office for Russo, Fiorello, Savarese, and Capanelli and independently found by Judge Schwartz for Albanese, Russo, Savarese, and Fiorello at the time each man was sentenced. As the Second Circuit has held, a "criminal defendant's self-inculpatory statements made under oath at his plea allocution carry a strong presumption of verity and are generally treated as conclusive in the face of the defendant's later attempt to contradict them." Adames v. United States, 171 F.3d 728, 732 (2d Cir.1999) (internal citations and quotations omitted). Counsel's failure to object to the stipulated loss amount, therefore, did not prejudice petitioner, and without a showing of prejudice, Albanese cannot maintain a claim of ineffective assistance. See generally Strickland, 466 U.S. at 686-88, 104 S.Ct. 2052 (setting forth standard for establishing ineffective assistance of counsel claim). Indeed, in light of Albanese's stipulations in the plea agreement, his answers to Judge Schwartz at the plea allocution, his failure to object to the loss amount calculation at his sentencing, and the overwhelming evidence supporting the loss amount detailed above, defense counsel had no good faith basis to object.
*254 To the extent that Albanese attempts to claim his attorney was ineffective for failing to raise issues regarding the constitutionality of the application of the Sentencing Guidelines to his case, as addressed by the Supreme Court in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Second Circuit has held that the Booker decision does not apply retroactively to casessuch as Albanese'son collateral review. See Guzman v. United States, 404 F.3d 139 (2d Cir.2005)("Booker does not apply retroactively to cases on collateral review"). Accordingly, Booker does not apply to Albanese's case.
Albanese's Claim that Counsel Failed To File An Appeal
Albanese contends that Ms. Bank was ineffective for failing to file a notice of appeal despite Albanese's purported instructions that she do so. However, Albanese contention is belied by Ms. Bank's affirmation.
The Second Circuit has held that, under Strickland, "[a] lawyer who disregards a defendant's specific instructions to file an appeal acts in a manner that is professionally unreasonable." Garcia v. United States, 278 F.3d 134, 137 (2d Cir.2002); see also Hernandez v. United States, 202 F.3d 486, 489 (2d Cir.2000) (holding that a defendant is deprived of "reasonably competent representation" when he "fails without excuse to file a timely notice of appeal"). Moreover, prejudice is presumed under such circumstances, even without a showing of the merits of the petitioner's appeal. Id.; Garcia, 278 F.3d at 137.
As set forth in Ms. Bank's affirmation, Albanese did not instruct Ms. Bank to file an appeal. As Ms. Bank recognizes, the terms and conditions of the Plea Agreement foreclosed Mr. Albanese's right to appeal a sentence within the 70 to 87 month sentencing range stipulated in the Plea Agreement. Indeed, Ms. Bank discussed this fact again with Albanese after he was sentenced. Most tellingly, Albanese "many months after" his sentencing, contacted Ms. Bank and again reviewed with her the terms of the plea agreement he knowingly and voluntarily entered, and even then did not direct Ms. Bank to file (an untimely) notice of appeal.
Albanese's claim of ineffective assistance of counsel appears to be based on nothing more than his after-the-fact displeasure with the Government's plea offer and the resulting sentence. Albanese's current dissatisfaction does not constitute a valid basis on which to find that his counsel was ineffective. See United States v. Garguilo, 324 F.2d 795, 797 (2d Cir.1963) ("A convicted defendant is a dissatisfied client, and the very fact of his conviction will seem to him proof positive of his counsel's incompetence.").
The petition is denied in its entirety.
NOTES
[1]  Judge Haight applied the enhancement at the initial sentencing. The Second Circuit remanded for reconsideration of that single issue. Judge Haight stuck to his guns (figuratively as well as literally) and persisted in applying the enhancement. His ruling was not overturned on appeal.