Peck v. U.S.

• Decision Date: 30 January 1997
• Docket Number: No. 1021,D,1021
• Parties: Michael PECK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 94-2444.
• Court: U.S. Court of Appeals — Second Circuit

Page 450

106 F.3d 450

Michael PECK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 1021, Docket 94-2444.

United States Court of Appeals Second Circuit.

Argued March 8, 1995.

Decided Dec. 28, 1995.

Argued in banc Sept. 11, 1996.

Remanded to Panel Dec. 27, 1996.

On reconsideration Jan. 30, 1997.

Jeremiah Donovan, Old Saybrook, CT, for Petitioner-Appellant.

Andrew P. Gaillard, Assistant United States Attorney, Bridgeport, CT, Christopher F. Droney, United States Attorney for the District of Connecticut, New Haven, CT, for Respondent-Appellee.

Before: WALKER and CALABRESI, Circuit Judges. ¹

WALKER, Circuit Judge:

Petitioner-appellant Michael Peck appeals from a judgment entered on June 2, 1994 in the United States District Court for the District of Connecticut (Alan H. Nevas, Judge ) that granted in part and denied in part Peck's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Following a jury trial, Peck was convicted of two counts of structuring cash transactions to evade bank reporting requirements in violation of 31 U.S.C. §§ 5324(3), 5313(a), and 5322. Peck did not file a direct appeal.

In his petition, Peck contended that the Supreme Court's decision in Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), which was decided after the time to appeal from his judgment of conviction had expired, required that his convictions be vacated because the jury was erroneously instructed with respect to the scienter necessary for conviction.

In Peck v. United States, 73 F.3d 1220 (2d Cir.1995) ("Peck I "), a panel majority held that Peck had demonstrated, as required by United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982), "cause" for his failure to pursue a direct appeal and "actual prejudice" resulting from the instructional error, and reversed the judgment of the district court. Thereafter, the full court granted the government's petition to rehear the case in banc and heard oral argument. However, before the in banc court rendered a decision, the Supreme Court decided California v. Roy, --- U.S. ----, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996) (per curiam), which substantially answered the question posed to the in banc court. The in banc court then voted to dissolve and to return the case to the panel for application of Roy to the facts of this case. Peck v. United States, 102 F.3d 1319 (2d Cir. 1996) (in banc) (per curiam) ("Peck II ").

Because we now conclude, in light of Roy, that the error in this case did not have a " 'substantial and injurious effect or influence in determining the jury's verdict,' " Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)), we vacate the judgment in Peck I and hold that the error in this case was harmless. Accordingly, the district court's judgment is affirmed.

BACKGROUND

The facts of this case are described in detail in Peck I, familiarity with which is assumed, and only a brief recitation of them will be provided here.

In July 1991, Peck, an attorney practicing in Hartford, Connecticut, was charged with tax evasion and willful failure to file a tax return. Before his trial on the tax charges, which resulted in his conviction, Peck made a series of cash deposits that formed the basis The first count of the indictment in this case involved Peck's financial transactions between November 7, 1991 and November 27, 1991. During that period, Peck made twelve cash deposits of $7,500 and two cash deposits of $5,000 at various branches of the Society for Savings, into an account maintained by his father. On November 7 alone, he made three deposits, each at a separate branch. He declined to make a deposit on the same day at a fourth branch after the bank informed him that the bank would have to file a Currency Transaction Report ("CTR"). ³ The second count related to similar conduct between March 27, 1992 and April 6, 1992. On March 27, 1992, Peck opened a checking account at Northeast Savings Bank by depositing a $50,000 check from a former law associate. Soon thereafter he made the following withdrawals from that account: $6,500 on March 30, $6,000 on March 31, $6,000 on April 1, and $6,500 on April 2. On April 3, he withdrew $7,000 from an account at the Bank of Boston, and $2,000 from an account at the Society for Savings. On April 6, he attempted to withdraw $5,000 from the Bank of Boston account, but when the bank told him that a CTR would have to be filed because of his April 3 withdrawal, he abandoned the transaction.

of his convictions in this case for structuring cash transactions. ²

At trial, Peck testified to various innocent explanations for the multiple cash transactions. These explanations included that he was repaying an undocumented $100,000 loan from his father, even though he did not receive the loan proceeds until after he had deposited over $50,000 into his father's account; that separate transactions were made on the same day because they were coincidental to other errands; that he decided not to follow through with some transactions upon being informed that a CTR would have to be filed because he was in too much of a hurry; that he found cash transactions more convenient; and that he never carried more than $7,500 in cash for reasons of safety. Peck I, 73 F.3d at 1221-23.

The district court declined Peck's request to charge the jury that the government must prove that Peck knew that structuring was unlawful in order to satisfy the scienter requirement of willfulness contained in 31 U.S.C. § 5322(a). The decision of Judge Nevas was in accord with the settled law of this circuit. This court had twice upheld the scienter instruction given by the district court, which required the government to prove only that the defendant intended to avoid triggering the banks' reporting requirements.

See United States v. Caming, 968 F.2d 232, 238-41 (2d Cir.), cert. denied, 506 U.S. 956, 113 S.Ct. 416, 121 L.Ed.2d 339 (1992); United States v. Scanio, 900 F.2d 485, 489-91 (2d Cir.1990). On January 12, 1993, the jury found Peck guilty. On February 26, 1993, the district court sentenced Peck, in principal part, to two years imprisonment and three years of supervised release. Peck did not appeal.

On January 11, 1994, the Supreme Court held in Ratzlaf that the word "willfully" in 31 U.S.C. § 5322(a) requires the government to prove that the defendant knew that structuring was unlawful in order to establish a criminal currency structuring violation. 510 U.S. at 149, 114 S.Ct. at ----. On April 15, 1994, Peck filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Peck argued that his conviction should be vacated in light of Ratzlaf and, unrelated to the Ratzlaf issue, that he was entitled to sentencing relief as a result of an amendment to the United States Sentencing Guidelines. The district court granted habeas relief insofar as Peck requested a sentence reduction based upon the Guidelines amendment and denied his petition with respect to the Ratzlaf issue based on its finding that the result at trial "would [not] have been any different" if the correct scienter charge had been given to the jury. Peck I, 73 F.3d at 1228. Peck appealed the denial of the petition.

In Peck I, a panel majority reversed the judgment of the district court. The majority held that the habeas petition must be granted because the jury that tried Peck did not "substantially answer[ ] the Ratzlaf question adversely to him in the course of its actual deliberations." Id. The government requested a rehearing in banc. On May 31, 1996, the full court agreed to rehear the case in banc. As per the court's order that day, the rehearing was:

limited to the issue of the proper standard for determining, on a collateral attack, whether the failure to give a correct jury instruction on a new element (required by authoritative decisional law announced after the verdict) has resulted in 'actual prejudice' within the meaning of Frady, 456 U.S. at 168, 102 S.Ct. at 1594. Counsel [were directed to] consider whether 'actual prejudice' always results whenever the instruction required by Ratzlaf is not given, except in those cases where the reviewing court concludes that the jury's findings resolved in the prosecution's favor (by necessary implication) the issue that would have been posed by the Ratzlaf instruction, or whether 'actual prejudice' might not result under other circumstances, including where the reviewing court concludes that a rational jury, instructed in accordance with Ratzlaf, after hearing all the evidence, would necessarily have found the defendant guilty beyond a reasonable doubt.

On September 11, 1996, the in banc court heard oral argument. Before the in banc court rendered its decision, the Supreme Court decision in Roy clarified the harmless error analysis applicable to an error in a jury instruction on collateral review in the specific circumstances presented in Peck, see Peck II, 102 F.3d 1319, 1324-26 (Newman, C.J., concurring), thereby mooting the issue under consideration by the in banc court. On December 27, 1996, the in banc court dissolved itself and returned the case to this panel for reconsideration in light of Roy. Peck II, 102 F.3d 1319, 1320-21.

DISCUSSION

I. Harmless Error Jurisprudence

The history of this case illustrates the lack of precision in current harmless error jurisprudence, despite the frequency with which appellate courts must decide if error at trial is harmless. Chief Judge Newman's insightful concurring opinion in Peck II identifies significant uncertainties left in the wake of recent Supreme Court decisions concerning harmless error analysis of federal constitutional error. However, despite these uncertainties, a framework is emerging from recent Supreme Court caselaw. From our experience in Peck I and...