Porcelli v. U.S.

• Decision Date: 12 April 2005
• Docket Number: Docket No. 04-2000-PR.
• Citation: 404 F.3d 157
• Parties: Oscar PORCELLI, Petitioner-Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 157

404 F.3d 157

Oscar PORCELLI, Petitioner-Appellant, v. UNITED STATES of America, Appellee.

Docket No. 04-2000-PR.

United States Court of Appeals, Second Circuit.

Argued: February 3, 2005.

Decided: April 12, 2005.

Vivian Shevitz, South Salem, N.Y. (Jane Simkin Smith, Millbrook, N.Y. on the brief) Petitioner-Appellant.

Emily E. Berger, Assistant United States Attorney, Brooklyn, N.Y. (Roslynn R. Mauskopf, United States Attorney, Eastern District of New York, Susan Corkery, Assistant United States Attorney on the brief) for Appellee.

Before: WINTER and POOLER, Circuit Judges; and BRIEANT, District Judge^*.

BRIEANT, District Judge.

Oscar Porcelli, a federal felon, appeals from an Order of the United States District Court for the Eastern District of New York denying his petition for a writ of error coram nobis, collaterally attacking Porcelli's 1987 federal felony conviction.

We review de novo the standards that a District Court applies in considering the writ of error coram nobis and review for abuse of discretion a District Court's final decision to deny the writ. Fleming v. United States, 146 F.3d 88, 90 (2d Cir.1998).

Coram nobis is an "extraordinary remedy" authorized under the All Writs Act, 28 U.S.C. § 1651(a), generally sought to review a criminal conviction where a motion under 28 U.S.C. § 2255 is unavailable because petitioner is no longer serving a sentence. United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 98 L.Ed. 248 (1954). To obtain coram nobis relief, a petitioner must demonstrate continuing legal consequences of the petitioner's conviction. Fleming, 146 F.3d at 90. To do so, petitioner must show a concrete threat of serious harm. Id. at 91. Speculative harms are insufficient to meet this test. Id.

Historical Background:

Mr. Porcelli operated seventeen retail gasoline stations in the Eastern District of New York under the corporate name Gaseteria. Following a jury trial, which achieved some notoriety at the time, he was found guilty in December 1986, of sixty-one Counts of Mail Fraud (18 U.S.C. § 1341) and a one-count RICO Violation (18 U.S.C. § 1962(c)). These convictions arose out of the failure to collect retail sales tax on the gasoline sold, the filing of some one hundred fraudulent New York State sales tax returns between 1979 and 1982, and the resulting deprivation of the State of New York of nearly $5 million in state sales taxes.¹ On direct appeal, we affirmed the conviction in part, reversed in part and remanded for consideration of issues relating to restitution. United States v. Porcelli, 865 F.2d 1352 (1989) (Porcelli I). Familiarity of the reader with that decision is assumed. In it, over a strong dissent by Judge Newman, we found that the mail fraud statute, 18 U.S.C. § 1341, was applicable to a scheme to defraud the State of New York of taxes, and that this was so notwithstanding that the failure to collect sales taxes or the filing of fraudulent returns was merely a misdemeanor. We held in Porcelli I that Porcelli deprived the State of its property because he was obliged as a trustee of the State to pay sales taxes to the State, whether or not he actually collected sales taxes, and that his scheme of filing false sales tax returns deprived the State of its property. Porcelli I, 865 F.2d at 1360-61. The State, therefore, had a claim or chose in action, for the difference of what was due and the tax shown on the false returns. Id. at 1361.² The deprivation was deemed sufficient to show a scheme to defraud, which properly fell within the ambit of the mail fraud statute.³ See id. at 1359.

Thereafter, while serving his sentence, Porcelli sought habeas relief under 28 U.S.C. § 2255. This application was based on an intervening decision of the New York Court of Appeals, State v. Barclays Bank of N.Y., N.A., 76 N.Y.2d 533, 561 N.Y.S.2d 697, 563 N.E.2d 11 (1990), which Petitioner claimed undercut the original rationale for affirming his conviction. In Porcelli v. United States, 964 F.2d 1306 (2d Cir.1992) (Porcelli II), we affirmed denial of the writ. Barclays held that no property interest in checks for taxes due was acquired by the State where it did not first have possession of the checks or the tax dollars. 76 N.Y.2d at 540-41, 561 N.Y.S.2d 697, 563 N.E.2d 11. We held in Porcelli II that Barclays did "not involve the question whether choses in action in state sales tax law constitute `property,' and [was] therefore distinguishable." 964 F.2d at 1307. We pointed out again in Porcelli II that "Porcelli owed the state, by statute, an obligation to collect and remit taxes to the state, whether or not he actually collected the taxes from purchasers." Id. at 1308.

Thereafter, on April 26, 2000, subsequent to the decision by the New York State Court of Appeals in People v. Nappo, 94 N.Y.2d 564, 708 N.Y.S.2d 41, 729 N.E.2d 698 (2000), Porcelli again moved the District Court for relief under 28 U.S.C. § 2255. Porcelli v. United States, No. 00 Civ. 2500 (E.D.N.Y. Jul.17, 2001). Since he was no longer in custody, the District Court properly treated the application as one for a writ of error coram nobis under the All Writs Act, 28 U.S.C. § 1651(a). Id. In denying the writ, the District Court held that the Petitioner was not then subject to any continuing legal consequences of his conviction. Id. The District Court also rejected Petitioner's contention that the recent New York decision in Nappo was a basis for relief. Id. In that case, the New York Court of Appeals held that taxes due the State were not property of the State prior to their remittance and therefore the defendant could not be charged with a crime arising out of involvement in a scheme not to pay his own taxes. Nappo, 94 N.Y.2d at 567, 708 N.Y.S.2d 41, 729 N.E.2d 698. The District Court distinguished Nappo from Porcelli I on the ground that Porcelli I dealt with the obligation of a vendor as a trustee, to collect taxes from its customers on account of the State and to remit the collected taxes to the State.

On direct appeal, we reached the merits of the claim and held that "[e]ven assuming that the federal mail fraud statute, as construed by McNally, requires a scheme to deprive a victim of a property right that is vested, Nappo occasions no reason to retreat from our decisions in Porcelli I and II." Porcelli v. United States, 303 F.3d 452, 456 (2d Cir.2002) (Porcelli III).

Mr. Porcelli next filed the Petition for a writ of error coram nobis now before us, claiming that the rationale of all prior decisions in his case was now undermined by the February 26, 2003 decision of the Supreme Court in Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003).

The Government conceded in the District Court that Porcelli's claim satisfied the first two requirements for obtaining coram nobis relief set forth in Morgan, 346 U.S. at 511-12, 74 S.Ct. 247, and restated in Foont v. United States, 93 F.3d 76, 79 (2d Cir.1996), namely, that there are circumstances compelling such action to achieve justice and that sound reasons existed for failure to seek appropriate earlier relief. Porcelli v. United States, No. cv-03-4981, at 5 (Mar. 17, 2004) (Porcelli IV). The District Court then considered whether Petitioner's claim satisfied the third requirement that Petitioner continues to suffer legal consequences from his conviction, which may be remedied by granting the writ. Id. at 5-9. In his instant Petition, Porcelli made the same third prong assertions previously rejected by the District Court in Porcelli III. The only claimed continuing legal consequence worthy of consideration is his statutory preclusion, as a convicted felon, from serving as a juror in state or federal courts. The District Court held that this deprivation was "not the type of continuing collateral consequence of conviction that warrants a coram nobis review." Id. at 9. It then reached the merits of the claim and held that Scheidler was distinguishable on its facts. Id. at 10-11. This appeal followed.

The Jurisdictional Predicate

We recognize, as did the District Court, that Porcelli's preclusion from jury service is no more than a jurisdictional hook to support a quest for justice by means of the ancient writ of coram nobis, the only procedural device now available to Mr. Porcelli. Indeed, few citizens are breaking down the doors of the courthouses to serve as jurors, and it is obvious that at least one of the lawyers in any case would likely peremptorily challenge Petitioner as a potential juror, upon learning of his prior history. The District Judge noted that Porcelli received a jury qualification questionnaire in early July 2001, but did not return the form until six months later, although directed to do so within ten days. Porcelli IV at 9. The District Court also commented that "if the operation of [the New York and federal statutes disqualifying felons from jury duty] creates a substantial disability meriting coram nobis review, few felony convictions would ever be final," and as stated earlier, the Court then held that the deprivation of Petitioner's right to serve on a jury was not the type of continuing collateral consequence of conviction that warrants a coram nobis review. Id.

Appellant argues that the "parade of horrors" argument, that few felony convictions would ever become final, should be rejected because so few coram nobis petitions satisfy the first two prongs of Foont. Accordingly, even a slight showing of collateral consequences should be sufficient. In the interest of justice, we assume, as we did in Porcelli III, but do not decide, that in the context of this case the inability to serve as a New York State or federal juror is a collateral consequence of conviction sufficient to support the writ, and move directly to the merits.⁴

The Merits

Mr. Porcelli's current petition coram nobis challenges his conviction first on the basis of the Supreme Court's subsequent holding in Sch...