Strategic Def. Int'l Inc. v. U.S.

• Decision Date: 27 September 2010
• Docket Number: Case No. 8:10–CV–408–T–27EAJ.
• Citation: 745 F.Supp.2d 1214
• Parties: STRATEGIC DEFENSE INTERNATIONAL, INC., Petitioner,v.UNITED STATES of America, Respondent.
• Court: U.S. District Court — Middle District of Florida

745 F.Supp.2d 1214

STRATEGIC DEFENSE INTERNATIONAL, INC., Petitioner,

v.UNITED STATES of America, Respondent.

Case No. 8:10–CV–408–T–27EAJ.

United States District Court, M.D. Florida,Tampa Division.

Sept. 27, 2010.

John F. McGuire, McGuire Law Offices, P.A., Clearwater, FL, for Petitioner.Robert E. O'Neill, U.S. Attorney's Office, Middle District of Florida, Tampa, FL, for Respondent.

ORDER

JAMES D. WHITTEMORE, District Judge.

BEFORE THE COURT is Strategic Defense International, Inc.'s (hereafter “Defendant”) Petition for a Writ of Error Coram Nobis to Vacate a Judgment (Dkt. 1) and the Government's response in opposition (Dkt. 8).¹ Upon consideration, the petition is DENIED.²

The writ of coram nobis is an extraordinary remedy of last resort, “available only in compelling circumstances where necessary to achieve justice.” United States v. Mills, 221 F.3d 1201, 1203 (11th Cir.2000). The authority of a district court to issue a writ of error coram nobis under the All Writs Act, 28 U.S.C. § 1651(a), is accordingly limited. United States v. Morgan, 346 U.S. 502, 509 n. 15, 74 S.Ct. 247, 98 L.Ed. 248 (1954) (“This jurisdiction was of limited scope; the power of the court thus to vacate its judgments for errors of fact existed, as already stated, in those cases where the errors were of the most fundamental character; that is, such as rendered the proceeding itself irregular and invalid.”) (quoting United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 59 L.Ed. 129 (1914)). It has traditionally been reserved “to bring before the court factual errors ‘material to the validity and regularity of the legal proceeding itself,’ such as the defendant's being under age or having died before the verdict.” Carlisle v. United States, 517 U.S. 416, 429, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996) (quoting Mayer, 235 U.S. at 67–68, 35 S.Ct. 16).

Further, as was noted long ago by the Supreme Court, and more recently repeated, “it is difficult to conceive of a situation in a federal criminal case today where that remedy would be necessary or appropriate.” Carlisle v. United States, 517 U.S. at 429, 116 S.Ct. 1460 (quoting United States v. Smith, 331 U.S. 469, 476 n. 4, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947)). In sum, coram nobis review is an “extraordinary remedy” and is limited to errors “of the most fundamental character.” United States v. Mills, 221 F.3d at 1203. Fundamental errors do not include prejudicial misconduct during trial or claims of newly discovered evidence. Id.; Moody v. United States, 874 F.2d 1575, 1577 (11th Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1137, 107 L.Ed.2d 1042 (1990). Nor is the writ available to re-litigate criminal convictions. United States v. Addonizio, 442 U.S. 178, 186, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979).³

In the instant petition, Defendant presents nothing close to the requisite showing of “errors of the most fundamental character” or “circumstances compelling such action to achieve justice.” United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 98 L.Ed. 248 (1954). Rather, the petition raises claims of newly discovered evidence, prosecutorial misconduct, claimed Brady violations, and claims of insufficient evidence, none of which are cognizable in a coram nobis proceeding. Those claims and contentions do not raise errors of a fundamental character, that is, “matters of fact which ha [ve] not been put in issue or passed upon and [are] material to the validity and regularity of the legal proceeding itself.” United States v. Mayer, 235 U.S. at 68, 35 S.Ct. 16. Finally, Defendant's claims of ineffective assistance of counsel include unsupported conclusory allegations, contentions refuted by the record, and complaints about tactical decisions made by experienced defense counsel.

Discussion

Defendant, together with its President, Thomas J. Spellissy, was convicted of conspiracy to defraud the United States and to commit bribery and wire fraud, in violation of 18 U.S.C. § 371. The convictions were affirmed on appeal. United States v. Spellissy, 243 Fed.Appx. 550 (11th Cir.2007). As summarized by the Eleventh Circuit:

The convictions arose out of the alleged general services agreement between Spellissy, who was on “terminal leave” from the military, and William Burke, a civilian contractor, to obtain preferential treatment for their clients. The Government charged Burke by information with bribery, in violation of 18 U.S.C. § 201(b)(2)(A) and (B) and (2), to which Burke pled guilty as charged. Spellissy and SDI were convicted of conspiracy to defraud the United States and commit two offenses (bribery and wire fraud), in violation of 18 U.S.C. § 371.

United States v. Spellissy, 243 Fed.Appx. at 550.⁴

In its petition, Defendant raises nine grounds: (1) Government's failure to turn over exculpatory or impeaching evidence, (2) prosecutor's false arguments during trial, (3) Government's use of perjured testimony at trial, (4) and (5) Government suppression of evidence, (6) actual innocence, (7) insufficiency of the evidence and indictment, (8) ineffective assistance of counsel at during pretrial, trial, and sentencing, and (9) the denial of its right to testify at the Franks hearing and trial by counsel (“counsel's prevention to let SDI testify on its own behalf”).⁵

The essence of Defendant's several contentions, excluding its claim of ineffective assistance of counsel, is that it was not guilty of the charge for which it stands convicted, there was insufficient evidence to support the conviction, the Government withheld evidence, and the prosecutor engaged in prosecutorial misconduct. These are essentially the same claims Defendant has been repeating in its various filings in the underlying criminal case, buttressed from time to time with allegations of “new evidence.” (CR Dkts. 125, 151). Allegations of newly discovered evidence, prejudicial misconduct during trial, and attempts to have the district court revisit its pre-trial rulings are not cognizable in coram nobis. Moody v. United States, 874 F.2d 1575, 1577 (11th Cir.1989) (citing Mayer, 235 U.S. at 69, 35 S.Ct. 16). Accordingly, they are not cognizable in a coram nobis proceeding. See United States v. Aviles, 380 Fed.Appx. 830, 831 (11th Cir.2010) (quoting Alikhani v. United States, 200 F.3d 732, 734 (11th Cir.2000)); see also Jackson v. United States, 394 F.2d 114, 115 (5th Cir.1968).

Indeed, three of the contentions Defendant raises were expressly addressed by the Eleventh Circuit in its opinion affirming Defendant's conviction. On appeal, Defendant's challenges to the denial of Defendants' motion to suppress, the admission into evidence of William Burke's Plea Agreement, and the sufficiency of the evidence were expressly rejected by the Eleventh Circuit. Accordingly, these claims are not cognizable in this coram nobis proceedings. See Jackson v. United States, 394 F.2d 114, 115 (5th Cir.1968) (“The question of the alleged unreasonable search and seizure cannot again be raised by appellant, for it was effectively disposed of and affirmed by us on the merits of the case itself.”).

Defendant's purported Brady claims raised as Ground One involve factual issues concerning Spellissy's status with the Army which were litigated during trial and accordingly resolved by the jury and court. As acknowledged by Defendant, Spellissy's status (active or retired) with the Army at the time of the conspiracy was the subject of trial testimony. Additionally, Defendant raised this issue in prior post trial motions. (CR Dkt. 129, p. 2; CR Dkt. 151, pp. 10–11). Defendant now claims the Government is in possession of “new evidence” which contradicts its trial theory that Spellissy was retired from the Army at the time of the offense, and the evidence presented in support of the search warrant affidavit. (Dkt. 1, p. 13).

Defendant asserts that “[n]ow, the Government has evidence that the President was actually on active duty while the alleged conspiracy took place.” ( Id. at p. 14). Specifically, in support of its claimed Brady violation, Defendant alleges: “The Army conducted three review boards after the trial and determined that the offense of conviction occurred while on active duty. The Army has evidence to justify their determination. SDI does not have this evidence. The Government never turned this evidence over to trial counsel during discovery.” (Dkt. 1, at pp. 15–16) (emphasis added).⁶

Defendant's claim of “new evidence” is not cognizable in a coram nobis proceeding. Mills, 221 F.3d at 1204; Moody, 874 F.2d at 1577(“A claim of newly discovered evidence relevant only to the guilt or innocence of the petitioner is not cognizable in a coram nobis proceeding.”). Nor do Defendant's contentions constitute compelling circumstances supporting coram nobis relief.

Defendant's next claim, Ground Two, is that the Government used “perjured testimony” in the trial, referencing the testimony of a cooperating witness William Burke. Defendant contends that the Government “should have been precluded from using [Burke's] plea agreement to impeach him.” (Dkt. 1, pp. 21–24). This claim was expressly rejected by the Eleventh Circuit in its opinion affirming the conviction.

Further, Defendant contends that the prosecutor presented “false statements to the Court and Jury during his opening and closing argument.” (Dkt. 1, p. 16). Defendant complains again that the Government “suppressed” evidence that Spellissy “was on active duty when the alleged offense of conviction was committed.” ( Id.) Defendant enumerates a “list of false facts told to the Jury at trial.” ( Id. at p. 17).

Defendant's complaints of prosecutorial misconduct and the knowing use of perjured testimony merely repeat contentions Defendants previously raised in their various post trial motions. (CR Dkt. 151, pp. 16–19, 20; CR Dkt. 156, pp. 9–10; CR Dkt. 158, pp. 9, 15–16). In short, this is yet another attempt to litigate those issues, on the misguided theory that the Court has...