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The U.S. Court of Appeals for the 10th Circuit has given a former chief executive officer the opportunity to show that his legal representation was flawed and that his conviction on securities fraud conspiracy charges should be vacated. The ruling is unusual in that the appeals court in the same opinion also upheld his conviction on direct appeal. On Aug. 9, the 10th Circuit ruled in U.S. v. Weeks that Robert Weeks was entitled to an evidentiary hearing on his ineffective assistance of counsel claim. The court vacated an August 2009 order by District of Utah Judge Ted Stewart denying Weeks’ petition to vacate his conviction. But the court also affirmed Weeks’ conviction on his direct appeal. Weeks, the former CEO and president of Pan World Minerals International Inc. pleaded guilty in 2002 to conspiracy to commit securities fraud for charges related to the unregistered sale of Pan World stocks. In 2006, he was sentenced to a year and a day in prison and fined $51,643.25. In August 2007, Weeks filed a pro se motion claiming ineffective assistance of counsel on multiple grounds, including his former attorney’s refusal to file a direct appeal of his conviction. Weeks’ other grounds included the attorney’s failure to meet and confer with Weeks in a meaningful manner; failure to conduct meaningful due diligence and discovery; failure to inform Weeks regarding the superseding indictment; failure to file a motion to dismiss; and fraud on the court. Weeks’ former attorney, James Barber, who practiced in Salt Lake City according to court records, has since died, according to Kent Hart, an attorney in the District of Utah federal public defender’s office who represented Weeks at the 10th Circuit. According to court records, the court appointed Hart as Weeks’ counsel in May 2009. In September 2009, the district court found Weeks’ trial counsel ineffective for failing to file a direct appeal. That court entered an amended judgment to allow Weeks to make the appeal. According to court papers, Weeks “asserts that he never actually admitted to agreeing with his alleged co- conspirators to violate securities laws, as opposed to finding out the illegality of the activities after the fact.” Tenth Circuit Senior Judge Stephanie Seymour wrote the opinion, joined by judges Jerome Holmes and Timothy Tymkovich. Seymour noted that the 10th Circuit panel affirmed Weeks’ conviction because he “pled guilty to the conspiracy charge without any further claim that he did not knowingly violate the law.” Also, Seymour noted that Weeks did not raise concerns about the validity of his guilty plea in the four years between his guilty plea and sentencing. “Under these circumstances, it is neither obvious nor plain that Mr. Weeks’ plea was involuntary,” Seymour wrote. As for Weeks’ other grounds for ineffective assistance of counsel, Seymour addressed language in Weeks’ petition, which indicated that he did not understand that his lack of intent to commit a crime was a valid defense to the conspiracy charge. Seymour observed that Weeks’ statements during the plea hearing “indicate he was part of an agreement to sell the unregistered shares overseas, [but] arguably none of his statements indicate he knew this activity was illegal.” “Mr. Weeks’ apparent confusion during the plea colloquy arguably gives some support to his claim that counsel was inadequate in preparing for trial and in preparing Mr. Weeks for the plea hearing,” Seymour wrote. “According to Mr. Weeks, he believed at the time that Mr. Barber’s representation was adequate because he was unaware he had been misinformed of the elements of conspiracy to commit securities fraud. But now that he understands the true nature of the crime, he alleges, he realizes his counsel misinformed him. Mr. Weeks’ allegations, taken as true, would entitle him to relief.” The 10th Circuit’s order for an evidentiary hearing on Weeks’ allegations is important because “just being associated with others is not enough for a conspiracy,” Hart said. Weeks wants to clear his name and get the restitution order vacated, Hart said. “[Making those payments] makes it very difficult for anyone to get back on their feet especially after having been in prison,” Hart said. Weeks has long maintained that “he did not understand the nature of the charges against him at the time of his plea,” said Scott Wilson, a District of Utah assistant federal defender who has also represented Weeks. “He is gratified for the opportunity to show that his plea was the result of his counsel’s failure to properly advise him, and ultimately to show he is not, in fact, guilty of conspiring to commit securities fraud,” Wilson stated. The U.S. Attorney’s Office for the District of Utah has no comment, said spokeswoman Melodie Rydalch. Motions to vacate a conviction due to ineffective assistance are common, but it’s rare for an appeals court to grant one, particularly when the court “affirmed the conviction and said the district court was acting properly in accepting a plea,” said Colleen Conry, a Washington government-enforcement partner at Boston-based Ropes & Gray, who isn’t involved in the case. “There was a little bit of tension between those two findings,” Conry said. Conry also said it’s unclear from the plea hearing transcript excerpts cited in the 10th Circuit ruling whether Weeks truly didn’t grasp the significance of his plea or whether he was simply nervous. Sheri Qualters can be contacted at [email protected].

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