Frank v. U.S., 89-1920

• Decision Date: 24 September 1990
• Docket Number: No. 89-1920,89-1920
• Citation: 914 F.2d 828
• Parties: James J. FRANK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 828

914 F.2d 828

James J. FRANK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 89-1920.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 25, 1990.

Decided Sept. 24, 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.

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.

I. FACTUAL AND PROCEDURAL BACKGROUND

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.

II. ANALYSIS

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

A. 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 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

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 government of tangible property. Specifically, the government contends that Frank solicited individuals within the state court system to steal files and records pertaining to his DUI clients. The government focuses on paragraph 9 of Count 1 of the indictment:

It was further a part of the scheme to defraud that JAMES J. FRANK would cause and attempt to cause certain judges, temporary judges, court bailiffs and other public officials and employees to secrete, remove, destroy, and otherwise act dishonestly in regard to the disappearance of official court and prosecution records of the DUI charges files against JAMES J. FRANK's DUI clients in violation of the laws of the State of Indiana.

At oral argument, defense counsel contended that nothing in the record shows that any court or prosecutorial records were ever removed or destroyed and thus the BMV was then at most deprived of information pertaining to drunk driving convictions that was not transferred to the BMV from the courts. Because, according to defense counsel, this information is not of the type protected by the mail fraud statute under Carpenter and its progeny, defense counsel insists that the indictment fails to state an offense under McNally.

In addressing this argument, we observe at the outset that the claim that there is no evidence that any records were ever removed or destroyed goes not to the issue of whether the indictment alleges a deprivation of property rights under McNally but rather to the issue of whether there was a sufficient factual basis for Frank's guilty plea to the mail fraud charge. Under FED.R.CRIM.P. 11(f), before accepting a guilty plea, the trial court must determine that a factual basis exists to support the plea. The purpose of the rule is, in part, to ensure that a complete record for appeal exists that "mak[es it] clear exactly what the defendant admits to, and whether the admissions are factually sufficient to constitute the alleged crime." United States v. Fountain, 777 F.2d 351, 355 (7th Cir.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1232, 89 L.Ed.2d 341 (1986). The court can make this determination from anything appearing on the record, including the government's presentation of evidence. United States v. Montoya, 891 F.2d 1273, 1295 (7th Cir.1989). Because lack of compliance with the requirements of Rule 11 may be grounds for granting section 2255 reli...