Foont v. U.S.

Decision Date22 August 1996
Docket NumberD,No. 1671,1671
Citation93 F.3d 76
Parties-6284, 96-2 USTC P 50,602 Paul J. FOONT, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 95-2721.
CourtU.S. Court of Appeals — Second Circuit

Anand Agneshwar, McCarter & English, Newark, New Jersey (Richard P. O'Leary, Mark Weissmann, McCarter & English, Newark, New Jersey, of counsel), for Petitioner-Appellant.

I. Bennett Capers, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney, Southern District of New York, New York City, Michele Hirshman, Assistant United States Attorney, New York City, of counsel), for Respondent-Appellee.

Before: OAKES, ALTIMARI, and WALKER, Circuit Judges.

WALKER, Circuit Judge:

Defendant Paul J. Foont appeals from a memorandum decision and order, reported at 901 F.Supp. 729 (S.D.N.Y.1995), entered on October 25, 1995 in the United States District Court for the Southern District of New York (Charles S. Haight, District Judge ), denying his petition for a writ of error coram nobis filed on February 10, 1995 to vacate his conviction on June 26, 1990 for conspiring to defraud the Internal Revenue Service ("IRS") and to violate various revenue laws. We affirm but do not reach the merits of Foont's petition, because we conclude that the district court did not abuse its discretion in finding that Foont failed to demonstrate "sound reasons" for his delay in seeking the writ.

BACKGROUND

On October 10, 1989, the government filed a fifteen-count indictment charging Foont, an employee and principal of Cralin Partnerships ("Cralin"), and his co-defendant, Jeffrey L. Feldman, with participation in a scheme to defraud the IRS. Specifically, the indictment charged Foont and Feldman with conspiracy to defraud the United States by impeding and impairing the IRS; tax evasion; and aiding the filing of false tax returns, all of which arose out of certain financial transactions entered into by Cralin. On April 6, 1990, Foont pleaded guilty to Count One of the indictment, which charged him with conspiracy to create a fraudulent scheme to evade taxes; the remaining counts against Foont were dismissed. On June 26, 1990, he was sentenced principally to a term of incarceration of one year and one day. Foont did not appeal his conviction and completed his term of imprisonment on April 12, 1991.

On February 10, 1995, nearly five years after entering his guilty plea, Foont filed the instant petition for a writ of error coram nobis. In the petition, Foont asserted that 1) his guilty plea was involuntary and had been taken in violation of Fed.R.Crim.P. 11(f), and 2) he had a possible advice-of-counsel defense based on newly discovered exculpatory evidence, consisting of an article, a speech, and a letter, each authored by Peter Rothenberg, the attorney who had advised Cralin Partnerships, as well as various depositions in a civil proceeding. The Rothenberg materials set forth legal justifications for the Cralin transactions underlying Foont's conviction. Foont also claimed that the Rothenberg article, in particular, was improperly withheld Brady material. In his affidavit accompanying the petition, Foont asserted: "It was a mistake [to plead guilty] because I am not guilty, and that is why I now seek to vacate my plea." The district court dismissed his petition. Foont now appeals.

DISCUSSION

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.' " United States v. Carter, 437 F.2d 444, 445 (5th Cir.) (per curiam) (quoting United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 19-20, 59 L.Ed. 129 (1914)), cert. denied, 403 U.S. 920, 91 S.Ct. 2238, 29 L.Ed.2d 698 (1971). A district court may issue a writ of error coram nobis pursuant to the All Writs Act, 28 U.S.C. § 1651(a), where "extraordinary circumstances are present." Nicks v. United States, 955 F.2d 161, 167 (2d Cir.1992). The proceedings leading to the petitioner's conviction are presumed to be In rejecting Foont's petition, the district court determined that Foont did not demonstrate "sound reasons" for the delay in seeking relief. With respect to Foont's contention that the district court did not conduct a proper allocution at the time of his guilty plea, the district court found:

                correct, and "the burden rests on the accused to show otherwise."  United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 253, 98 L.Ed. 248 (1954);  Nicks, 955 F.2d at 167.   A petitioner seeking such relief must demonstrate that 1) there are " 'circumstances compelling such action to achieve justice,' " id. at 167 (quoting Morgan, 346 U.S. at 511, 74 S.Ct. at 252-53), 2) "sound reasons exist [ ] for failure to seek appropriate earlier relief," Morgan, 346 U.S. at 512, 74 S.Ct. at 253, and 3) the petitioner "continues to suffer legal consequences from his conviction that may be remedied by granting of the writ," Nicks, 955 F.2d at 167
                

Foont has not, and cannot, establish sound reasons why he did not earlier apply to this Court to withdraw his guilty plea because of an inadequate allocution in violation of Rule 11.

. . . . .

The record of the plea proceedings, upon which Foont's present counsel relies and energetically parses, has been in existence since the day the plea was accepted. No reason appears why Foont could not have applied to withdraw his guilty plea on that basis prior to sentence or immediately after sentence and the entry of judgment of conviction, thereafter taking an appeal if unsatisfied by the result. There is no showing of mental incompetence ... or any other factor to justify the delay. Accordingly the propriety of this Court's accepting Foont's guilty plea cannot be raised on a writ of error coram nobis.

Foont, 901 F.Supp. at 735. The district court also rejected Foont's contention that the delay in his petition was due to his unawareness of documentary evidence supporting an advice-of-counsel defense. Based on this newly discovered evidence, Foont maintained that "Mr. Rothenberg's various statements, whether in a speech to colleagues at a seminar, in a scholarly article, or told to the Disciplinary Committee, demonstrate that Cralin and its principals were relying upon the advice of counsel in structuring these transactions." Id. at 737 (quotation omitted). The district court concluded that, "[i]n short, this evidence is offered as proof of Foont's innocence of the crimes charged in the indictment." Id. at 736. The district court denied relief on this basis, concluding that newly discovered evidence bearing on the petitioner's guilt or innocence is not a legitimate use of the writ of error coram nobis. Id.

Initially, it must be decided whether Foont's delay in seeking coram nobis renders the relief sought unavailable. In United States v. Morgan, the Supreme Court did not specify what might constitute "sound reasons" for delay. It is undisputed that "[b]ecause a petition for writ of error coram nobis is a collateral attack on a criminal conviction, the time for filing a petition is not subject to a specific statute of limitations." Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir.1994). However, an error of constitutional dimension at the time of plea or sentence renders a conviction voidable, not void, and coram nobis relief may be barred by the passage of time. A district court considering the timeliness of a petition for a writ of error coram nobis must decide the issue in light of the circumstances of the individual case.

We review de novo the legal issue of whether the district court applied the proper standard in evaluating the delay in Foont's petition. The district court's ultimate decision to deny the petition on the ground that Foont has failed to...

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