914 F.2d 828 (7th Cir. 1990), 89-1920, Frank v. United States

Docket Nº:89-1920.
Citation:914 F.2d 828
Party Name:James J. FRANK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Case Date:September 24, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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914 F.2d 828 (7th Cir. 1990)

James J. FRANK, Petitioner-Appellant,


UNITED STATES of America, Respondent-Appellee.

No. 89-1920.

United States Court of Appeals, Seventh Circuit

September 24, 1990

Argued Jan. 25, 1990.

David W. Mernitz, Christopher Kirages, Stark, Doninger, Mernitz & Smith, Indianapolis, Ind., and Andrew C. Mallor and David J. Christiansen, Mallor, Grodner & Bohrer, Bloomington, Ind., for petitioner-appellant and James J. Frank, Bloomington, Ind., petitioner-appellant pro se.

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JoAnna Wiegart and John F. Hoehner, Asst. U.S. Atty., Office of the U.S. Atty., Hammond, Ind., for respondent-appellee.

Before WOOD, Jr., CUDAHY and COFFEY, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Petitioner James J. Frank appeals from the dismissal of his section 2255 petition. For the reasons discussed below, we affirm.


On June 29, 1985, Frank was charged in a twenty-three count indictment, the charges stemming from Frank's involvement in a scheme to obtain favorable results for his clients in pending cases for driving under the influence ("DUI") and to prevent his clients' DUI convictions from appearing in the records of the Indiana Bureau of Motor Vehicles ("BMV").

Frank pled guilty to one count of mail fraud, under 18 U.S.C. Secs. 2, 1341 (Count 2), and one count of obstruction of justice under 18 U.S.C. Sec. 1503 (Count 23), in return for the government's agreement to dismiss the other counts. The district court sentenced Frank to three years imprisonment on Count 2 and suspended the sentence on Count 23, instead placing Frank on five-years probation to run consecutively with the sentence imposed for Count 2. His probation was conditioned on his paying a fine of $5,000 within the first six months of supervision.

After Frank was sentenced, the Supreme Court decided McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). McNally held that while the mail fraud statute, 18 U.S.C. Sec. 1341, clearly protects property rights, schemes to defraud the citizenry of the intangible right to good government do not fall within the statute's scope. Id. at 356, 107 S.Ct. at 2879. Frank filed his petition under 28 U.S.C. Sec. 2255, seeking to vacate his conviction and sentence. 1 In his petition, Frank contended that Count 2 failed to state an offense for mail fraud under McNally. He also argued that the obstruction of justice charge in Count 23 was improperly brought under section 1503 and that his guilty plea to the obstruction of justice charge was not voluntarily made. On March 3, 1989, the district court denied Frank's section 2255 petition, and Frank appeals.


On appeal, Frank renews his argument that (1) the indictment failed to state an offense for mail fraud under McNally and (2) that his guilty plea to the obstruction of justice charge was involuntary. We consider each of these arguments in turn. 2

  1. The Mail Fraud Conviction

    Count 2 of the indictment charges Frank with mail fraud. The mail fraud statute, 18 U.S.C. Sec. 1341, contains two elements: the existence of a "scheme," and the use of the mails in furtherance of the scheme. 3 Frank argues that he is entitled to relief under section 2255 because the indictment did not charge that the scheme deprived any person or entity of money or property; that is, according to Frank, the indictment charged him with mail fraud under the no longer viable "intangible

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    rights" theory of prosecution. 4 Section 2255 provides relief to a prisoner "claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or the Laws of the United States." Custody resulting from an indictment that fails to state an offense violates the laws of the United States. United States v. Keane, 852 F.2d 199, 204 (7th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 2109, 104 L.Ed.2d 670 (1989); see also United States v. Gimbel, 830 F.2d 621, 624 (7th Cir.1987).

    We review the sufficiency of the indictment under a de novo standard. United States v. Bucey, 876 F.2d 1297, 1301-02 (7th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 565, 107 L.Ed.2d 560 (1989). When determining whether an indictment charges an offense under McNally, a court must look beyond how the scheme is legally characterized in the indictment and "examine whether the 'specific conduct alleged in the indictment is clearly proscribed by the mail fraud statute.' " United States v. Doe, 867 F.2d 986, 988 (7th Cir.1989) (citation omitted); see also Bateman v. United States, 875 F.2d 1304, 1308 (7th Cir.1989); United States v. Bonansinga, 855 F.2d 476, 480 (7th Cir.1988). An indictment alleging a deprivation of property rights is not defective under McNally just because it also alleges a deprivation of intangible rights. United States v. Folak, 865 F.2d 110, 113 (7th Cir.1988). Thus, "where a single set of facts establishes both a scheme to defraud a victim of money or property, as well as a deprivation of some intangible right," McNally does not require us to set aside the conviction. Id. at 113.

    More generally, the reviewing court "should consider the challenged count as a whole and refrain from reading it in a hypertechnical manner." United States v. Mosley, 786 F.2d 1330, 1334 (7th Cir.) (quoting United States v. Gironda, 758 F.2d 1201, 1210 (7th Cir.), cert. denied, 474 U.S. 1004, 106 S.Ct. 523, 88 L.Ed.2d 456 (1985)), cert. denied, 476 U.S. 1184, 106 S.Ct. 2919, 91 L.Ed.2d 548 (1986). Finally, we observe that a petitioner challenging the sufficiency of the indictment has a heavy burden: unless an indictment "is so defective on its face as to not charge an offense under any reasonable construction," it cannot be questioned under section 2255. Ginsburg v. United States, 909 F.2d 982, 984 (7th Cir.1990) (quoting Burchfield v. United States, 544 F.2d 922, 924 (7th Cir.1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977)). With these principles in mind, we consider the indictment itself. 5

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    Paragraph 6 of Count 1 of the indictment 6 describes Frank's involvement in a scheme to defraud Lake County, the citizens, public officials, and public employees of Lake County and the state of Indiana of their right to good government and the honest services of employees. It is thus readily apparent that the allegations in this paragraph are based on the now defunct intangible rights theory of mail fraud. Because existence of intangible rights language is not necessarily fatal to the indictment, we must determine whether the other paragraphs of the indictment describing the scheme to defraud allege an offense that is cognizable under McNally. For the reasons discussed below, we conclude that they do.

    The allegations in paragraphs 7 through 12 of Count 1 describe a scheme pursuant to which (1) Frank sought to obtain favorable results for his clients in pending DUI cases by causing court officials and other public officials and employees to act dishonestly in handling these cases and (2) sought to prevent his clients' DUI convictions from appearing on the BMV's record by causing these officials to take or destroy the records pertaining to his clients' DUI cases. The indictment further alleges that Frank and others received fees and that Frank received larger than usual fees, in return for keeping Frank's clients' DUI convictions from appearing in the BMV's records.

    In arguing that we should uphold Frank's conviction for mail fraud, the government claims that the indictment is sustainable under McNally because it alleges a scheme to deprive the...

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