136 F.3d 417 (5th Cir. 1998), 96-30545, United States v. Dyer

Docket Nº:96-30545.
Citation:136 F.3d 417
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. T. Windle DYER, Defendant-Appellant.
Case Date:February 27, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 417

136 F.3d 417 (5th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

T. Windle DYER, Defendant-Appellant.

No. 96-30545.

United States Court of Appeals, Fifth Circuit

February 27, 1998

Page 418

Harry W. McSherry, New Orleans, LA, Stephen A. Higginson, Asst. U.S. Atty., New Orleans, LA, for Plaintiff-Appellee.

Page 419

Arthur A. Lemann, III, Arthur Anthony Lemann, IV, Arthur Lemann III and Associates, New Orleans, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GARWOOD, DUHE and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant T. Windle Dyer (Dyer) appeals the district court's denial of his petition for a writ of coram nobis, challenging his 1984 guilty plea conviction for mail fraud contrary to 18 U.S.C. § 1341. We affirm.

Facts and Proceedings Below

On December 2, 1982, a federal grand jury returned a one-count indictment charging Dyer with extortion under the Hobbs Act, 18 U.S.C. § 1951. The indictment alleged that Dyer had extorted a payment of $25,000 as well as a financing commitment from a local real estate developer and banker. According to the indictment, Dyer had induced the unnamed victim to make a $25,000 payment and to provide a letter of commitment to finance "Algiers Point," a development project proposed by Dyer. The indictment further alleged that this had been done "by the wrongful use of fear of economic loss and under color of official right." The gist of the alleged extortion was that Dyer used his position on the New Orleans City Planning Commission, as well as his purported influence with certain members of the New Orleans City Council, to extort money and a letter of commitment for Algiers Point by threatening to cause the City Council to reverse approval of the La Maison Charles project. Although the victim was not referred to by name in the indictment, the evidence before the grand jury reflected that Guy Olano (Olano), the developer behind the La Maison Charles project and chairman of the board at a local bank, was the alleged victim of Dyer's extortion.

In April of 1982, Olano and his partners had petitioned the City Council for a conditional zoning ordinance amendment to allow construction of the La Maison Charles timeshare project in New Orleans. After a public hearing on the matter, the Planning Commission unanimously voted at a meeting held on June 16, 1982, not to recommend Olano's proposal to the City Council. The June 16 vote occurred shortly before Dyer became a City Planning Commissioner. Soon thereafter, Dyer and Olano became acquainted and began negotiations regarding Olano's possible participation in the Algiers Point project, for which Dyer sought financing.

On July 21, 1982, Dyer attended his first Planning Commission meeting in his official capacity. At this meeting, the Commission reconsidered the La Maison Charles proposal and, with Dyer voting, reversed its earlier decision and resolved to favorably recommend the proposal to the City Council. On August 5, 1982, the proposal was brought before the City Council, which approved it.

During this time, Dyer repeatedly told Olano that he had used his influence (and vote) as a City Planning Commissioner to assist passage of the La Maison Charles proposal. He also claimed to have used his influence to ensure a favorable vote in the City Council, and to have expended approximately $25,000 in doing so. Additionally, Dyer continued to negotiate with Olano, seeking to obtain financing from Olano that would allow him to buy out his current partner in the Algiers Point project, Charles Wall. 1

In the ensuing months, Dyer allegedly began to demand "reimbursement" from Olano for the $25,000 that he claimed to have spent in influencing the votes on the La Maison Charles proposal. Dyer also allegedly began to pressure Olano to enter into a final agreement regarding the financing for his Algiers Point project. On November 2, 1982, Olano executed a letter of commitment for financing the Algiers Point project. The financing agreement anticipated the payment of an

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annual "management fee" to Dyer of $100,000. Dyer claimed that the $25,000 reimbursement that he requested was solely for the "out-of-pocket" expenses he had actually incurred in "lobbying" for approval of Olano's La Maison Charles project. Dyer also told Olano that he did not need any additional cash for himself, stating that Olano could "take care of him" both by means of the $100,000 management fee that was part of the financing deal for Algiers Point and by providing the financing itself.

In early November of 1982, Olano began cooperating with the FBI. Olano told law enforcement agents that Dyer was requesting substantial sums of money, purportedly to affect the outcome of votes both in the Planning Commission and in the City Council. The FBI began investigating Dyer, suspecting widespread corruption among New Orleans city officials. They came to believe that, in addition to accepting bribes in exchange for his own votes and political influence, Dyer might also be acting as a "bag man" on behalf of local politicians.

To obtain evidence of this suspected corruption, the FBI requested that Olano assist in the recording of both face-to-face and telephone conversations with Dyer. On November 8, 1982, Dyer and Olano met at the Plimsoll Club in New Orleans. During their conversation, which was recorded by Olano, Dyer repeated that he had expended $25,000 to assure passage of the La Maison Charles project and requested reimbursement in cash, explaining that it had been necessary to pay off certain public officials to ensure their votes. He told Olano that he had delivered the Planning Commission vote, but warned that the City Council might rescind their approval of the La Maison Charles project, unless he began to live up to his "obligations." However, Dyer assured Olano that if Olano paid him $25,000 quickly (and in cash), and finalized an agreement for the financing of the Algiers Point project, that Dyer could ensure that a certain City Councilman would continue to support the proposal. 2

The next day, November 9, 1982, Dyer reiterated the same representations and implicit threats in the course of several telephone conversations. Olano agreed to meet Dyer later that day at the Hyatt Regency Hotel in New Orleans. At the meeting, Dyer explained to Olano that he needed payment in cash because the individuals whom he needed to pay preferred dealing in cash. Olano told Dyer that he had not been able to get the entire $25,000 in currency, but that he had $5,000 in cash and a check for $20,000. Dyer accepted the money and the check, with the understanding that he would hold the check while Olano delivered the remaining $20,000 in cash over the next few days. Apparently Olano did not contact Dyer again for several days after the payment.

Six days later, on the evening of November 15, 1982, Dyer, accompanied by his civil attorney, Stephen Dwyer, approached Arthur Lemann, a New Orleans attorney who specialized in criminal law practice. The next day, Dyer caused a letter to be mailed under the signature of his civil lawyer, Dwyer, to Olano's office. 3 The letter falsely stated that the $25,000 payment had been an advance of funds on the Algiers Point project, and was being returned by Dyer due to the expiration of Olano's letter of commitment regarding the financing of the project. On November 17, Dyer had a telephone conversation with

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Olano during which he told Olano that his demand for the money had merely been a "little test" to determine whether Olano was corruptible and to determine whether other local politicians were accepting bribes. Dyer commended Olano on seeming very reluctant to pay the money, and congratulated him for passing the test "with flying colors."

Approximately two weeks later, on December 2, 1982, Dyer was indicted under the Hobbs Act for extortion. A grand jury investigation continued after Dyer's initial indictment, and on April 3, 1983, the grand jury issued subpoenas to both of Dyer's attorneys, Lemann and Dwyer, calling them to testify before the grand jury regarding their interactions with Dyer subsequent to the November 15 meeting. The government also announced that it might seek a superseding indictment against Dyer to add one count of obstruction of justice in violation of 18 U.S.C. § 1512. 4

Eventually, Dyer began negotiating a plea agreement with the government. Pursuant to the plea agreement, a superseding bill of information charging Dyer with one count of mail fraud was prepared. The information was based on essentially the same facts, related above, as the indictment for extortion. The government asserts, and Dyer does not dispute, that the substantive crime charged was changed from extortion to mail fraud to reduce Dyer's sentencing exposure from a maximum of twenty years to a maximum of only five.

At his rearraignment, Dyer waived his right to be charged by indictment and pleaded guilty to the one-count superseding information charging him with violation of section 1341, the mailing alleged being the November 16, 1982, letter. A letter formalizing the plea agreement and the FBI transcripts of the inculpatory conversations were received into evidence as was the written Rule 11 "statement of facts." The district court accepted Dyer's plea of guilty. On October 24, 1984, the district court sentenced Dyer to two year's incarceration, but suspended all but six months, which Dyer served at the Federal Prison Camp at Texarkana, Texas.

On June 24, 1987, the Supreme Court handed down McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), which held that the federal mail fraud statute under which Dyer was...

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