USA v. Mandanici

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-2059
• Citation: 205 F.3d 519
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Respondent-Appellee, v. JOHN C. MANDANICI, JR., Petitioner-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 519

205 F.3d 519 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Respondent-Appellee, v. JOHN C. MANDANICI, JR., Petitioner-Appellant.

Docket No. 99-2059

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: September 22, 1999

Decided: February 23, 2000

Appeal from a judgment of the United States District Court for the District of Connecticut (Alvin W. Thompson, Judge), entered December 4, 1998, denying petitioner-appellant's petition for a writ of error coram nobis. On appeal, petitioner contends that his constitutional rights were violated at his 1983 trial for making false statements of fact in violation of 18 U.S.C. 1001 because the trial court made a finding of materiality based on a preponderance of the evidence rather than beyond a reasonable doubt, as required following the decisions in United States v. Gaudin, 515 U.S. 506 (1995), and United States v. Ali, 68 F.3d 1468 (2d Cir. 1995).

Affirmed.

[Copyrighted Material Omitted] BRIAN E. SPEARS, Assistant United States Attorney for the District of Connecticut (Stephen C. Robinson, United States Attorney for the District of Connecticut, of counsel), for Respondent-Appellee.

JAMES J. RUANE, Bridgeport, CT, for Petitioner-Appellant.

Before: KEARSE, OAKES, and CABRANES, Circuit Judges.

Judge Kearse concurs in the opinion and judgment of the Court, and files a concurring opinion.

JOSE A. CABRANES, Circuit Judge:

The principal question presented, as a matter of first impression, is whether the change in the law of this Circuit following United States v. Gaudin, 515 U.S. 506 (1995), to require proof of materiality beyond a reasonable doubt for conviction under 18 U.S.C. 1001, applies retroactively on collateral review. Petitioner John C. Mandanici, Jr., appeals from a judgment of the United States District Court for the District of Connecticut (Alvin W. Thompson, Judge), entered December 4, 1998, denying his petition for a writ of error coram nobis.¹ Judge Thompson held that Gaudin does not apply retroactively insofar as the Supreme Court's decision changed the law to require that materiality be decided by a jury rather than the judge, but he did not address Mandanici's alternative argument concerning the standard of proof required for conviction after Gaudin. We hold that this latter change in law does not apply retroactively on collateral review, and therefore affirm the judgment of the District Court.

I.

The factual background of this case is described in detail in our opinion on direct appeal, see United States v. Mandanici, 729 F.2d 914 (2d Cir. 1984), familiarity with which is assumed, and will be repeated here only to the extent necessary.

Mandanici owned an apartment building in Bridgeport, Connecticut, in the early 1980s, for which he sought and received rent subsidy benefits under a program funded by the United States Department of Housing and Urban Development ("HUD"). See id. at 915. To participate in the program, Mandanici was required, inter alia, to complete and file a number of documents with the Bridgeport Housing Authority, which administered the program locally on behalf of HUD. See id. at 915-16. In 1982, Mandanici was indicted by a federal grand jury sitting in the District of Connecticut on three counts of making false statements in these documents, in violation of 18 U.S.C. 1001,² and on a fourth count of making false statements to a federally insured bank, in violation of 18 U.S.C. 1014.³ See Mandanici, 729 F.2d at 916 & n.2.

In February and March 1983, Mandanici was tried before a jury, with Judge Robert C. Zampano presiding. When Mandanici was tried, 1001 provided:

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

18 U.S.C. 1001 (1976).⁴ By its plain terms, the provision established three separate offenses: (1) falsifying, concealing, or covering up by any trick, scheme, or device a material fact; (2) making a false, fictitious, or fraudulent statement; and (3) making or using a false writing or document.⁵ A conviction under 1001 could be sustained if the jury found that the requirements of any one of these three offenses had been met.

At the time of Mandanici's trial, the law in this Circuit was that materiality was an element only of the first offense-namely, falsifying, concealing, or covering up by trick, scheme, or device a material fact. See, e.g., United States v. Marchisio, 344 F.2d 653, 666 (2d Cir. 1965). Materiality in such cases, however, was not an issue to be decided by a jury, but rather an issue to be decided by the judge as a matter of law. See, e.g., United States v. Gribben, 984 F.2d 47, 50-51 (2d Cir. 1993). A conviction for making false statements or for making or using false writings, on the other hand, did not require any finding of materiality. See United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir. 1984); see also United States v. Bilzerian, 926 F.2d 1285, 1299 (2d Cir. 1991).

Although Mandanici was charged with making false statements, it appears that Judge Zampano believed materiality was an element of the offenses charged, albeit one to be decided by him rather than by the jury.⁶ Thus, at the close of Mandanici's trial, Judge Zampano did not instruct the jury that it had to find beyond a reasonable doubt that Mandanici's statements were material; instead, Judge Zampano himself made a finding of materiality.⁷

Judge Zampano submitted the case to the jury on March 4, 1983. On the same day, the jury returned a verdict of guilty on all three counts of making false statements in violation of 1001, and not guilty with respect to the charge under 1014. On direct appeal, we reversed Mandanici's conviction on one of the three 1001 counts for insufficiency of the evidence, but affirmed his convictions on the other two, finding that the evidence "amply support[ed]" the charges. Mandanici, 729 F.2d at 920; see id. at 921. Mandanici served a three-year term of probation and paid a $20,000 fine.

In June 1995, the Supreme Court ruled that if materiality is an element under 1001, a finding of materiality must be made by the jury, rather than by the judge. See United States v. Gaudin, 515 U.S. 506, 522-23 (1995). The Supreme Court refrained from expressly deciding whether materiality is an element under 1001,⁸ but in United States v. Ali, 68 F.3d 1468 (2d Cir. 1995), amended on denial of reh'g, 86 F.3d 275 (2d Cir. 1996), decided four months after Gaudin, we overruled our precedents and held that materiality is an element of any and all charges under 1001. See id. at 1474-75. Accordingly, the law in this Circuit now requires that for a conviction under 1001 to be sustained, the jury must have made a finding of materiality beyond a reasonable doubt.

On November 17, 1995, invoking Gaudin, Mandanici filed a petition for a writ of error coram nobis to vacate and expunge his convictions.⁹ Mandanici alleged that his "[c]onstitutional rights to due process and to a jury trial were violated by the trial court's failure to instruct the jury that the government had the burden of proving beyond a reasonable doubt the element of materiality." In an opinion filed December 4, 1998, Judge Thompson denied the petition, relying on our decision in Bilzerian v. United States, 127 F.3d 237 (2d Cir. 1997), to hold that Gaudin does not apply retroactively on collateral review. This timely appeal followed.

II.

A writ of error coram nobis is "essentially a remedy of last resort for petitioners who are no longer in custody pursuant to a criminal conviction." Fleming v. United States, 146 F.3d 88, 89-90 (2d Cir. 1998) (per curiam). Coram nobis is "not a substitute for appeal, and relief under the writ is strictly limited to those cases in which errors of the most fundamental character have rendered the proceeding itself irregular and invalid." Foont v. United States, 93 F.3d 76, 78 (2d Cir. 1996) (internal quotation marks and ellipsis omitted); see Nicks v. United States, 955 F.2d 161, 167 (2d Cir. 1992) (stating that a writ of error coram nobis should be granted "only where extraordinary circumstances are present"). In reviewing a petition for the writ, a court must presume that the proceedings were correct, and the burden of showing otherwise rests on the petitioner. See Nicks, 955 F.2d at 167.

To obtain coram nobis relief, a petitioner "must demonstrate that '1) there are circumstances compelling such action to achieve justice, 2) sound reasons exist for failure to seek appropriate earlier relief, and 3) the petitioner continues to suffer legal consequences from his conviction that may be remedied by granting of the writ.'" Fleming, 146 F.3d at 90 (quoting Foont, 93 F.3d at 79). On appeal, we review de novo the question of whether a district judge applied the proper legal standard, but review the judge's ultimate decision to deny the writ for abuse of discretion. See Fleming, 146 F.3d at 90.

A.

As noted, Judge Thompson denied Mandanici's present petition on the ground that Gaudin does not apply retroactively on collateral review. In Gaudin, the Supreme Court held that if materiality is an element under 1001, the Fifth and Sixth Amendments require that a jury, not a judge, make the finding. See 515 U.S. at 522-23. Following Gaudin, we held in Ali that materiality is an element of any and all charges under 1001. See 68 F.3d at 1474-75. Thus, while before Gaudin and Ali materiality in a prosecution under 1001 could have been decided by the judge, or not at all (if materiality was not an element), now the issue is reserved for the jury in all cases.

In...