Klein v. U.S.

• Decision Date: 10 July 1989
• Docket Number: 88-2692,Nos. 87-1769,s. 87-1769
• Citation: 880 F.2d 250
• Parties: Ben KLEIN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 250

880 F.2d 250

Ben KLEIN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

Nos. 87-1769, 88-2692.

United States Court of Appeals,

Tenth Circuit.

July 10, 1989.

Rod N. Snow, Dixon and Snow, P.C., Denver, Colo. (Steven Janiszewski, Dixon and Snow, P.C., Denver, Colo., was also on the brief) for plaintiff-appellant.

Gail Brodfuehrer, Dept. of Justice, Tax Div., Washington, D.C. (William S. Rose, Jr., Asst. Atty. Gen., Washington, D.C., Gary R. Allen and Robert E. Lindsay, Tax Div., Dept. of Justice, Washington, D.C., were also on the brief) for defendant-appellee.

Before HOLLOWAY, Chief Judge, SEYMOUR and BALDOCK, Circuit Judges.

HOLLOWAY, Chief Judge.

Ben Klein (Klein) was convicted of five counts of tax evasion in 1973. Related to those prior convictions, there are now two consolidated appeals before us, one challenging the trial court's denial of a petition for a writ of coram nobis (No. 87-1769) and one challenging the trial court's denial of a Rule 60(b) motion for a new trial in that proceeding (No. 88-2692). We affirm both rulings.

I Factual Background and Procedural Posture

The lengthy and complex procedural posture of this case is relevant to both of these appeals. Klein's petition for a writ of coram nobis challenges his 1973 convictions under 26 U.S.C. Sec. 7201 for evading taxes from 1966-1970. We affirmed those five convictions in 1975. See United States v. Klein, 35 AFTR 2d 75-1282 (10th Cir.1975), cert. denied, 423 U.S. 827, 96 S.Ct. 44, 46 L.Ed.2d 44 (1975). We rejected there Klein's argument that he was not competent to stand trial and that the issue of his mental capacity to form intent to defraud should not have been submitted to the jury.

A. Klein's 1978 Motion for a New Trial

In 1978 Klein filed a motion for a new trial in his criminal case on the ground of newly discovered evidence. The evidence consisted of information known to the Bureau of Narcotics and Dangerous Drugs (B.N.D.D.) and the I.R.S. before trial and not communicated to Klein. Klein had been investigated for possible involvement in narcotics trafficking. During the early part of its investigation the B.N.D.D thought that he had received income from financing narcotics deals. This belief was referred to the I.R.S., which ultimately decided not to pursue the matter. VII R. 166-167. The trial court denied Klein's motion for a new trial, reasoning that it was untimely and that none of the new evidence would have been admissible or exculpatory. United States v. Klein, No. 73-CR-11 (D.Colo. April 10, 1978). Again we affirmed. See United States v. Klein, No. 79-1024 (10th Cir. May 11, 1979) (per curiam), cert. denied, 444 U.S. 925, 100 S.Ct. 264, 62 L.Ed.2d 182 (1979) (upholding the trial court's ruling that the motion was untimely).

B. Disciplinary Proceedings Before the Colorado Supreme Court

Throughout the 1970's and 1980's Klein was involved in state bar disciplinary proceedings. In 1972, he was suspended from the practice of law for an indefinite period of time, but in no event for less than three years, for fabricating documents and presenting them to the Colorado Supreme Court Grievance Committee in defense of pending allegations of professional misconduct. See People v. Klein, 179 Colo. 408, 500 P.2d 1181 (1972) (en banc) (Klein I ). In 1988, after various proceedings, the Colorado Supreme Court granted Klein's petition for reinstatement to the practice of law. People v. Klein, 756 P.2d 1013 (Colo.1988) (en banc) (Klein II ). The court found that Klein had regained his mental health (Klein had earlier asserted to the Committee that he was mentally disabled) and was competent to practice law. Id. at 1016.

C. Civil Proceedings in the Tax Court

In 1980 Klein received a notice of deficiency in income tax and additions to tax for civil fraud penalties from 1962 through 1970. The Tax Court found that the government had failed to prove fraud for the years 1962 through 1965, but reasoned that Klein was collaterally estopped by his criminal convictions from denying fraud for 1966 through 1970. Klein v. Commissioner, 48 TCM 651 (1984). Klein's appeal to this court of the Tax Court's decision (No. 85-1245) has been abated pending disposition of these consolidated appeals. Our opinion affirming the Tax Court is being separately filed today. 880 F.2d 260.

D. Denial of the Writ of Coram Nobis

In support of his petition for coram nobis relief in the district court Klein argued that: (1) there was new evidence that the government withheld its belief that he was financing narcotics deals; and (2) there was new evidence that Chief Probation Officer Hyland had knowledge of Klein's mental condition, which both he and the prosecutors failed to disclose. After hearing testimony and receiving numerous exhibits, the trial court denied the petition. IX R. 2-7.

In his oral ruling the district judge found: (1) that Klein had the burden of proof; (2) that Klein delayed seeking the writ from 1978 to 1985 to the government's prejudice; (3) that the prosecution did not know of Hyland's information before trial and therefore had no duty to divulge it; (4) that Hyland, as a probation officer of the court, had no duty to divulge his knowledge of Klein's mental illness in the navy; (5) that the government's belief that Klein was financing narcotics deals was not exculpatory; (6) that the affidavits of Klein's 1973 trial attorneys, stating that the drug information would not have made a difference, were highly persuasive; (7) that introduction of the drug evidence would have been sheer folly; and (8) that Klein had failed to carry his burden of proof. IX R. 2-7. A timely notice of appeal was filed.

E. Denial of the Motion for a New Trial

As noted, in 1988 the Colorado Supreme Court granted Klein's petition for reinstatement to the practice of law, finding that he had regained his mental health and was competent to practice law. People v. Klein, 756 P.2d 1013, 1016 (Colo.1988) (en banc) (Klein II ). Shortly thereafter, Klein filed a motion for a new trial in his proceeding for a writ of coram nobis. Klein argued that the Colorado Supreme Court in Klein II recognized that he had suffered from mental illness, further supporting his incompetency defense to his 1966-1970 federal tax convictions. The federal trial court denied the motion and Klein filed a timely notice of appeal.

II Analysis

A Denial of the Petition for a Writ of Coram Nobis

While the writ of coram nobis was abolished by the 1946 amendment of Fed.R.Civ.P. 60(b) in civil cases, it retains its vitality in criminal proceedings. United States v. Morgan, 346 U.S. 502, 505-506 and n. 4, 512, 74 S.Ct. 247, 249-250 and n. 4, 253, 98 L.Ed. 248 (1954). See 28 U.S.C. Sec. 1651 (granting federal courts authority to issue "all writs necessary or appropriate in aid of their respective jurisdictions...."). Because the writ continues litigation after final judgment and exhaustion of other remedies, relief should be "allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice." Morgan, 346 U.S. at 511, 74 S.Ct. at 252. The writ is available only to "correct errors that result in a complete miscarriage of justice." United States v. Williamson, 806 F.2d 216, 222 (10th Cir.1986) (quoting Korematsu v. United States, 584 F.Supp. 1406, 1419 (N.D.Cal.1984)).

It is presumed that the proceedings leading to the conviction were correct, see Morgan, 346 U.S. at 512, 74 S.Ct. at 253, and the burden is on the petitioner to demonstrate that the asserted error is jurisdictional or constitutional and results in a complete miscarriage of justice. United States v. Scherer, 673 F.2d 176, 178 (7th Cir.1982), cert. denied, 457 U.S. 1120, 102 S.Ct. 2935, 73 L.Ed.2d 1334 (1982). See also United States v. Addonizio, 442 U.S. 178, 186, 99 S.Ct. 2235, 2241, 60 L.Ed.2d 805 (1979). When claiming newly discovered evidence, the petitioner must show that due diligence on his part could not have revealed the evidence prior to trial and that the evidence "would have likely led to a different result." Scherer, 673 F.2d at 178.

i Evidence Of Klein's Involvement in Narcotics Trafficking

The court held an extensive evidentiary hearing before denying the coram nobis petition. Klein produced evidence (much of it the same as that produced in the 1978 motion for a new trial and the tax case) of the B.N.D.D.'s investigation and the allegedly unwarranted suspicion held by it and the I.R.S. that he had received income from financing narcotics deals. He argued that if the government had disclosed its suspicion prior to trial, he could have introduced that evidence and shown the government's suspicion unfounded, thereby undermining the soundness of the government's investigation and its decision to charge him.

We reject Klein's argument for fundamental reasons. Klein failed to exercise due diligence in seeking the writ, a prerequisite to relief. See Hirabayashi v. United States, 828 F.2d 591, 604-605 (9th Cir.1987) (petitioner must show valid reasons for not attacking the conviction earlier). As the trial court found, Klein had access to the information relied upon here from 1978 to 1985. IX R. 4. During those seven years two key witnesses died. IX R. 4. We are persuaded that Klein failed to exercise due diligence in seeking the writ. ¹

Even assuming the exercise of due diligence, Klein's argument fails on the merits. It is important to remember that Klein's argument in support of his petition for a writ of coram nobis is premised upon an alleged denial of his constitutional right to a fair trial--on the ground that the prosecutors failed to disclose impeachment evidence, under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and the Jencks Act. We think it clear that Klein was not denied a fair trial. ² For that reason alone, his petition for coram nobis relief necessarily fails.

Moreover, Klein failed to carry his burden in this coram...