723 F.3d 215 (D.C. Cir. 2013), 12-3015, United States v. Caso

Docket Nº:12-3015.
Citation:723 F.3d 215
Opinion Judge:GARLAND, Chief Judge:
Party Name:UNITED STATES of America, Appellee v. Russell James CASO, Jr., Appellant.
Attorney:Elizabeth G. Oyer argued the cause for appellant. With her on the briefs was Scott M. Noveck. Lauren R. Bates, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief was Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman, John P. Mannarino, and Mary Ann Snow, Assist...
Judge Panel:Before: GARLAND, Chief Judge, and ROGERS and GRIFFITH, Circuit Judges.
Case Date:July 19, 2013
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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723 F.3d 215 (D.C. Cir. 2013)

UNITED STATES of America, Appellee

v.

Russell James CASO, Jr., Appellant.

No. 12-3015.

United States Court of Appeals, District of Columbia Circuit.

July 19, 2013

Argued Dec. 13, 2012.

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Appeal from the United States District Court for the District of Columbia (No. 1:07-cr-00332-1).

Elizabeth G. Oyer argued the cause for appellant. With her on the briefs was Scott M. Noveck.

Lauren R. Bates, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief was Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman, John P. Mannarino, and Mary Ann Snow, Assistant U.S. Attorneys.

Before: GARLAND, Chief Judge, and ROGERS and GRIFFITH, Circuit Judges.

GARLAND, Chief Judge:

Russell James Caso, Jr. is innocent of the crime for which he was charged and convicted. The government does not dispute the point. Nonetheless, Caso was denied an opportunity to collaterally attack his conviction and sentence because he could not demonstrate that he is also innocent of a separate and uncharged offense that has a lower sentencing range under the United States Sentencing Guidelines. Because Caso was not required to make such a showing, we reverse the order denying his motion to vacate his conviction and sentence.

I

Caso's conviction arose out of his work for former United States Representative Curt Weldon. Caso initially served as one of Representative Weldon's legislative assistants. In 2005, he was appointed as the Representative's chief of staff. During this time, Representative Weldon was approached by a nonprofit consulting firm (" Firm A" ) to take legislative action on two proposals implicating relations between the United States and Russia. The same firm retained Caso's wife to edit written drafts of those proposals. Over the course of several months, Firm A paid Caso's wife $19,000 for what appear to be de minimis services. Mem. & Order Denying Mot. Vacate 2, United States v. Caso, No. 07-332 (D.D.C. Jan. 12, 2012) (" Dist. Ct. Op." ).

Caso, like many officers and employees of the United States Congress, was required to file an annual disclosure statement detailing, among other things, the sources of " income earned by a spouse from any person which exceed $1,000." 5 U.S.C. app. 4 § 102(e)(1)(A); see generally 5 U.S.C. app. 4 §§ 101 et seq. (" Ethics in Government Act of 1978" ). Despite this requirement, Caso failed to list Firm A's payments to his wife on his 2005 disclosure statement. Nonetheless, Caso signed the statement, certifying that it was true, complete, and correct. Dist. Ct. Op. 2.

On December 4, 2007, the government charged Caso with conspiracy to commit honest-services wire fraud, in violation of 18 U.S.C. §§ 371, 1343, and 1346. See 18 U.S.C. § 371 (proscribing conspiracy to defraud the United States); id. § 1343 (proscribing " any scheme or artifice to defraud" that involves the interstate transmission of signals over a wire); id. § 1346 (defining " scheme or artifice to defraud" to include " a scheme or artifice to deprive another of the intangible right of honest services" ). On the same day, Caso entered into a plea agreement, admitting that he had intentionally failed to disclose Firm A's payments to his wife and that " [a] reason for this non-disclosure was that [he] knew that his wife's financial relationship with Firm A created a personal conflict of interest." Statement of Offense 3-4 (Dec. 7, 2007) (Appellant's App. 14-15); see Plea Agreement 2 (Dec. 7, 2007) (Appellant's App. 19).

On July 30, 2009, Caso was sentenced to three years' probation, including a 170-day term of home confinement. Caso's term of

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probation ended on August 14, 2012, several months before oral argument on this appeal was heard. See Appellant's Br. 9. The expiration of Caso's term of probation does not moot Caso's appeal, however, because his conviction has collateral consequences. See Carafas v. La Vallee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Hamdan v. United States, 696 F.3d 1238, 1244-45 (D.C.Cir.2012); United States v. Maddox, 48 F.3d 555, 560 (D.C.Cir.1995).

Shortly after Caso was sentenced, the Supreme Court handed down Skilling v. United States, __ U.S. __, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), a decision that substantially limited the permissible reach of 18 U.S.C. § 1346, the honest-services fraud statute. Prior to Skilling, the government had used that statute to prosecute public officials who failed to disclose conflicts of interest, on the theory that such nondisclosure constituted a " scheme or artifice to deprive another of the intangible right of honest services," 18 U.S.C. § 1346. See Skilling, 130 S.Ct. at 2932-33. In Skilling, however, the Court interpreted § 1346 more narrowly. In an effort to avoid a " vagueness shoal," id. at 2907, the Court held that § 1346 " proscribe[s] bribes and kickbacks— and nothing more." Id. at 2932.

After the Supreme Court issued its decision, Caso filed a motion under 28 U.S.C. § 2255 to vacate and set aside his conviction and sentence on the ground that " the conduct to which he admitted in the statement of the offense— which did not stipulate [his] receipt of a bribe or a kickback— does not constitute an offense under § 1346 following Skilling. " Dist. Ct. Op. 4; see Def.'s Mot. Vacate 1 (Apr. 25, 2011). The government opposed the motion. It did not dispute that Caso was " ‘ actually innocent’ of the honest services wire fraud upon which his conspiracy conviction was based, as that offense now is defined under Skilling. " Opp'n to Def.'s Mot. Vacate 16 (Nov. 3, 2011). 1 But it maintained that Caso had procedurally defaulted his Skilling challenge by failing to directly appeal his conviction on the ground that the conduct to which he pled did not constitute an offense. Id. at 9-10; see Dist. Ct. Op. 6.

The district court agreed with the government. It noted that a defendant is ordinarily required to first " raise the basis of his habeas challenge during trial or on appeal in order to assert that claim on collateral review." Dist. Ct. Op. 6 (citing United States v. Frady, 456 U.S. 152, 162, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). Because Caso had failed to do so, the court held that he had presumptively defaulted his claim for collateral relief. Finally, the court agreed with the government that Caso had failed to satisfy the narrow conditions for excusing such a default that the Supreme Court set out in Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).

In Bousley, the Court noted that, " [w]here a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate" one of two conditions: (i) " cause" for the default and " actual prejudice" resulting therefrom, or (ii) that the defendant is " actually innocent." Id. at 622, 118 S.Ct. 1604 (citing, inter alia, Murray v. Carrier, 477 U.S. 478, 485, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). To satisfy the second condition, the " petitioner must demonstrate that, " ‘ in light of all the evidence,’ " ‘ it is more likely than not that no

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reasonable juror would have convicted him.’ " Id. at 623, 118 S.Ct. 1604 (quoting Schlup v. Delo, 513 U.S. 298, 327-28, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (quoting Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. CHI. L.REV.. 142, 160 (1970))). In addition, and central to this appeal, the Bousley court announced the following rule:

In cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner's showing of actual innocence must also extend to those charges.

Id. at 624, 118 S.Ct. 1604 (emphasis added).

Caso has not attempted to satisfy the first condition for overcoming procedural default; he relies solely on the second. To meet that condition, the district court held that Caso had to demonstrate his " actual innocence" not only of the crime for which he was charged and convicted— conspiracy to commit honest-services wire fraud, in violation of 18 U.S.C. § 371— but also of the separate, uncharged offense of making a " materially false ... statement" to the government, in violation of 18 U.S.C. § 1001. The court held that the government had forgone the false statement charge in the course of bargaining, and that this charge was just as serious as the honest-services conspiracy charge of which Caso had been convicted. Concluding that Caso could not show his actual innocence of the false statement charge in light of the admissions he made in his plea agreement, the court denied his motion to vacate his conviction and sentence.

The question at issue on this appeal is whether, in order to fall within the " actual innocence" condition for excusing procedural default, Caso is required to show his actual innocence of the false statement charge. Because that is a legal question, we review the district court's holding de novo. United States v. Weaver, 234 F.3d 42, 46 (D.C.Cir.2000).

II

Caso proffers three arguments for why he should not be required to demonstrate his " actual innocence" of the separate, uncharged offense of making a false statement. In this Part, we set out his first two arguments. We do not, however, need to resolve them. As we discuss, even if Caso is wrong about them, his third argument— which we set out in Part III— is sufficient to require a decision in his favor.

A

Caso's first contention is that Bousley does not require him to show his " actual innocence" of making a false statement in violation of 18 U.S.C. § 1001 because he was...

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