907 F.2d 653 (7th Cir. 1990), 89-1744, United States v. Craig

Docket Nº:89-1744, 89-1466.
Citation:907 F.2d 653
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert CRAIG and Peter V. Pappas, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellant, v. Frank P. NORTH, Jr., and Estate of Jack E. Walker, Defendants-Appellees.
Case Date:July 16, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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907 F.2d 653 (7th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,


Robert CRAIG and Peter V. Pappas, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellant,


Frank P. NORTH, Jr., and Estate of Jack E. Walker,


Nos. 89-1744, 89-1466.

United States Court of Appeals, Seventh Circuit

July 16, 1990

Argued May 16, 1990.

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Kristina M.L. Anderson and Thomas M. Durkin, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.

Patrick J. Calihan and Edward J. Calihan, Jr., Chicago, Ill., for defendants-appellees.

Before WOOD, Jr. and POSNER, Circuit Judges, and CRABB, District Judge. [*]

HARLINGTON WOOD, Jr., Circuit Judge.

This case began almost twenty years ago with a scandal in the Illinois General Assembly. For their roles in the scandal, the four individual defendants were variously convicted of mail fraud and travel in interstate commerce with intent to promote an unlawful activity. See 18 U.S.C. Secs. 1341, 1952. These defendants now have petitioned for a writ of error coram nobis, asking that their convictions be vacated in light of the Supreme Court's decision in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). The district granted the writ as to Frank P. North, Jr., and the Walker estate but denied the writ as to Robert Craig and Peter V. Pappas. Craig v. United States, 703 F.Supp. 730 (N.D.Ill.1989). As to the Walker estate, we dismiss this case for want of jurisdiction. Because we find coram nobis relief is inappropriate as to the other defendants, we reverse in part and affirm in part.


One cubic yard of ready-mix concrete weighs about four thousand pounds, and in 1971, representatives of the ready-mix cement industry wanted to increase the legal load limits of industry trucks by this amount. To meet this goal, the ready-mix industry trade association engaged appellant Pappas as their attorney. Pappas told the trade association that passage of the legislation would cost $5,000 for his fee plus an unspecified amount of money in the future. The unspecified amount soon became $50,000, payable to members of the Illinois legislature.

Terms of payment were then made an issue: was it enough for the bill merely to clear the Illinois General Assembly or did the governor have to approve the legislation before the money became due? An uneasy compromise was reached, and both houses of the General Assembly passed the bill. Not a party to the scheme, the governor then vetoed the proposed legislation, obviously believing that it was not in the best interest of the state of Illinois to have cement trucks rumbling over its highways four thousand pounds heavier. The General

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Assembly never attempted to override the veto, and the bill never became a law.

Unhappy with the result, the trade association balked at paying anything to state legislators. Because of the unfavorable results, the state legislators offered a discount and agreed to accept only $30,000 for services rendered. Eventually, $15,000 was distributed to various members of the Illinois General Assembly.

For their role in this scandal as members of the General Assembly, a federal district court convicted Craig, North, and Walker of mail fraud; attorney Pappas received similar treatment. In addition, Pappas and Craig were convicted of violations of the Travel Act, 18 U.S.C. Sec. 1952, for causing a member of the trade association to travel to Indiana for the purpose of soliciting bribe money from other trade association members. Pappas received a ten-year sentence and a $10,000 fine; Craig, North, and Walker received five-year sentences and $5,000 fines. On appeal, we affirmed the convictions. United States v. Craig, 573 F.2d 455 (7th Cir.1977), cert. denied, 439 U.S. 820, 99 S.Ct. 82, 58 L.Ed.2d 110 (1978). All four petitioners served their terms of imprisonment, but only Craig completed payment of his fine.

The government sought the mail fraud convictions under the intangible rights theory--that the petitioners had devised a scheme to defraud the citizens of the state of Illinois of their right to the petitioners' loyal, faithful, and honest service as public officers, public employees, and members of the Illinois General Assembly. In McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), the Supreme Court condemned this theory of prosecution, prompting a spate of coram nobis petitions to vacate previous convictions. The petitioners are no exception. Asking that their convictions be vacated, they filed a petition for a writ of error coram nobis with the district court. Because Walker has passed away, his estate has petitioned for relief.

Finding a plethora of continuing civil disabilities for convicted felons in the Illinois statutes, the district court granted coram nobis relief to petitioner North. The Walker estate also received relief on the grounds that Walker's felony conviction precluded his widow from collecting state pension benefits. As to petitioners Craig and Pappas, however, the district court ruled that their invalid mail fraud convictions did not taint their convictions under the Travel Act. Because the valid Travel Act conviction would support any lingering civil disabilities, see United States v. Keane, 852 F.2d 199, 205 (7th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 2109, 104 L.Ed.2d 670 (1989), the district court denied Craig's and Pappas's petitions. Both the government and the petitioners have appealed from the district court's judgments that were adverse to them.


A. Appellate Jurisdiction

We first pause at a jurisdictional question that neither party brought to the attention of this court. To avoid becoming mired in a swamp of dates, it is sufficient to note that we have appellate jurisdiction over both the government's and the petitioners' appeals only if FED.R.APP.P. 4(a)'s time limits for appeals in civil cases apply. If FED.R.APP.P. 4(b)'s time limits for appeals in criminal cases apply, then both the government's and the petitioners' notices of appeal were untimely, and we have no jurisdiction to hear this case. Thus, the question is which set of time limits should govern coram nobis appeals. Two courts of appeals have applied the time limits for criminal appeals, Yasui v. United States, 772 F.2d 1496, 1498-99 (9th Cir.1985); United States v. Mills, 430 F.2d 526, 528 (8th Cir.1970), cert. denied, 400 U.S. 1023, 91 S.Ct. 589, 27 L.Ed.2d 636 (1971), 1 and

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two have applied the time limits for civil appeals, United States v. Cooper, 876 F.2d 1192, 1193-94 (5th Cir.1989) (per curiam); United States v. Keogh, 391 F.2d 138, 140 (2d Cir.1968). We will break the tie and apply the time limits for civil appeals.

It is tempting to resolve this issue as a matter of semantics. In United States v. Morgan, 346 U.S. 502, 505 n. 4, 74 S.Ct. 247, 249 n. 4, 98 L.Ed. 248 (1954), the Supreme Court made a passing reference that a motion for a writ of error coram nobis "is a step in the criminal case." From this remark, two courts have deemed that an appeal from such a motion falls under rule 4(b)'s heading of "Appeals in Criminal Cases" and is therefore governed...

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