Telink, Inc. v. U.S.

• Decision Date: 13 May 1994
• Docket Number: No. 93-50034,93-50034
• Citation: 24 F.3d 42
• Parties: TELINK, INC.; Burnup & Sims, Inc., Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee, County of Fresno, County of San Diego, Intervenors-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 42

24 F.3d 42

TELINK, INC.; Burnup & Sims, Inc., Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee County of Fresno, County of San Diego, Intervenors-Appellees.

No. 93-50034

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 30, 1993.

Decided May 13, 1994.

James G. Thomas and James F. Neal, Neal & Harwell, Nashville, TN; Donald McGrath, II and Peter J. Hughes, San Diego, CA, for petitioners-appellants.

David P. Curnow, Asst. U.S. Atty., San Diego, CA, for respondent-appellee.

Ian Fan, Deputy County Counsel, San Diego, CA, for intervenors-appellees.

Appeal from the United States District Court for the Southern District of California.

Before: TANG, CANBY, and BEEZER, Circuit Judges.

Opinion by Judge BEEZER.

BEEZER, Circuit Judge:

Two corporate defendants petitioned the district court for a writ of error coram nobis, alleging that the indictment to which they pled nolo contendere failed to state a criminal offense. The corporations sought dismissal of the indictment and return of restitution and monetary fines. The district court denied the petition on a theory of laches and, alternatively, on the conclusion that certain counts in the indictment continued to state a criminal offense. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.

I

Telink, Inc. ("Telink"), a California corporation, Burnup & Sims, Inc. ("Burnup"), a Delaware corporation, and other individual defendants were involved in the sale of telecommunications goods and services to private firms and the Counties of San Diego and Fresno between 1978 and 1984. On October 26, 1984, the government charged the defendants with a pervasive pattern of private and public corruption in a forty-nine count indictment. The indictment alleged racketeering activity for the purpose of inducing the purchase of telecommunications equipment from Telink. Among the acts alleged in the indictment were the payment of bribes and sexual favors, pandering, money laundering, and influence peddling. The indictment charged some defendants, including Telink and Burnup, with mail and wire fraud. In pertinent part, the indictment charged that the defendants fraudulently obtained money and property from San Diego and Fresno Counties, and deprived the counties of the "honest and faithful services of their employees," by use of the mails and wires.

In 1986, the corporate defendants pled nolo contendere to some of the counts. Telink pled nolo contendere to Counts 3 through 46. Burnup pled nolo contendere to Counts 3, 11, 43, and 46. Counts 3 through 40 charged mail fraud (18 U.S.C. Sec. 1341); Counts 41 and 42 charged wire fraud (18 U.S.C. Sec. 1343); Count 43 charged interstate transportation of money taken by fraud (18 U.S.C. Sec. 2314); Counts 44 and 45 charged interstate travel in aid of racketeering and bribery (ITAR-bribery) (18 U.S.C. Sec. 1952); and Count 46 charged use of an interstate facility (the mails) in aid of racketeering and bribery (18 U.S.C. Sec. 1952).

The court sentenced Telink to pay a total of $28,000 in fines: $10,000 for Count 43, $10,000 for Count 44, and $8,000 for Count 45. Telink received five years probation on the remaining counts. Burnup was ordered to pay a $22,000 fine: $1,000 for Count 3, $1,000 for Count 11, $10,000 for Count 43, and $10,000 for Count 46. Burnup also was ordered to pay $950,000 in costs of prosecution, $3.5 million to the County of San Diego as restitution and settlement of a civil suit, and $300,000 to the County of Fresno as restitution and settlement of a civil suit. The sentences of both corporate defendants included terms of no further investigation or prosecution.

As for the individual defendants, some pled guilty; others went to trial on a redacted indictment in March 1987. The redacted indictment contained the following twenty-one counts excerpted from the original indictment: 7, 10 through 19, 23, 25, 26, 31, 33 through 38. All charged mail fraud.

In the midst of trial on the redacted indictment, the Supreme Court decided McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). McNally directly affected the issues at trial, holding that the mail fraud statute (18 U.S.C. Sec. 1341) is limited in scope to the protection of property rights and does not recognize the right to have the government's affairs conducted honestly. ¹ 483 U.S. at 356, 107 S.Ct. at 2879. The sufficiency of the redacted indictment which alleged that the Counties of San Diego and Fresno had been deprived of the "honest and faithful service of its employees" was challenged by the individual defendants. On July 28, 1987, the district court declared a mistrial in the cases of the remaining individual defendants. On March 24, 1988, the district court denied a motion to dismiss the redacted indictment. United States v. Telink, Inc., 681 F.Supp. 1454 (S.D.Cal.1988) ("Telink I" ). In December 1988, on multiple motions to reconsider, the district court reversed itself and dismissed the indictment against the individual defendants. United States v. Telink, Inc., 702 F.Supp. 805 (S.D.Cal.1988) ("Telink II" ). We affirmed in United States v. Telink, Inc., 910 F.2d 598 (9th Cir.1990) ("Telink III ").

On June 15, 1992, 18 months after the dismissal of the redacted indictment and nearly five years after the decision in McNally, Telink and Burnup filed this petition for writ of error coram nobis. Pursuant to written stipulations, San Diego County and Fresno County intervened as party-respondents. The petitioners alleged that McNally voided the indictment to which they pled nolo contendere and therefore sought to have their convictions set aside. The district court concluded that the petitioners' claim was barred by laches. The court reasoned that even if laches did not apply, the counts to which Telink and Burnup pleaded nolo contendere were not voided by McNally.

II

The government contends that Telink has no standing because the California corporation is no longer an operating entity. Both parties agree that Telink is a "defunct" corporation. The government argues that a "defunct" corporation, like a dead person, cannot seek coram nobis relief. When no material facts are in dispute, we review questions of standing de novo. United States v. Salazar, 805 F.2d 1394, 1396 (9th Cir.1986).

We reject the government's contention that Telink has no standing. Although not currently operating, Telink has not undergone corporate dissolution. Under California law, ² a corporation may be dissolved in only two ways: through a court order for an involuntary dissolution proceeding, Cal.Corp.Code Sec. 1808(a), (b) (1990), or through the filing of a certificate of dissolution with the Secretary of State in a voluntary proceeding, Cal.Corp.Code Sec. 1905(a), (c) (Supp.1994). Neither step has been taken. Telink therefore remains a corporate entity. Telink has standing.

III

We next address the district court's dismissal of the petition for writ of coram nobis based on the doctrine of laches.

The writ of error coram nobis affords a remedy to attack an unconstitutional or unlawful conviction in cases when the petitioner already has fully served a sentence. United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir.1989). The petition fills a very precise gap in federal criminal procedure. A convicted defendant in federal custody may petition to have a sentence or conviction vacated, set aside or corrected under the federal habeas corpus statute, 28 U.S.C. Sec. 2255. United States v. Hayman, 342 U.S. 205, 207, 72 S.Ct. 263, 266, 96 L.Ed. 232 (1951). However, if the sentence has been served, there is no statutory basis to remedy the "lingering collateral consequences" of the unlawful conviction. Yasui v. United States, 772 F.2d 1496, 1498 (9th Cir.1985). Recognizing this statutory gap, the Supreme Court has held that the common law petition for writ of error coram nobis is available in such situations, even though the procedure authorizing the issuance of the writ was abolished for civil cases by Fed.R.Civ.P. 60(b). United States v. Morgan, 346 U.S. 502, 505 n. 4, 74 S.Ct. 247, 249 n. 4, 98 L.Ed. 248 (1954). District courts are authorized to issue the writ pursuant to the All Writs Act, 28 U.S.C. Sec. 1651(a) (1994). Morgan, 346 U.S. at 506, 74 S.Ct. at 250, Walgren, 885 F.2d at 1420.

Because 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. ³ Morgan, 346 U.S. at 507, 74 S.Ct. at 250 (coram nobis petition allowed "without limitation of time"); Hirabayashi v. United States, 828 F.2d 591, 605 (9th Cir.1987). Rather, the petition is subject to the equitable doctrine of laches. See id. at 605; United States v. Darnell, 716 F.2d 479, 480 (7th Cir.1983), cert. denied, 465 U.S. 1083, 104 S.Ct. 1454, 79 L.Ed.2d 771 (1984). Unlike a limitations period, which bars an action strictly by time lapse, laches bars a claim if unreasonable delay causes prejudice to the defendant. ⁴ International Tel. & Tel. Corp. v. General Tel. & Elecs. Corp., 518 F.2d 913, 926 (9th Cir.1975). "[L]aches is not like limitation, a mere matter of time; but principally a question of the inequity of permitting the claim to be enforced--an inequity founded upon some change in the condition or relations of the property or parties." Holmberg v. Armbrecht, 327 U.S. at 396, 66 S.Ct. at 584.

In the absence of a specific limitations period, however, a court may draw on an analogous statute of limitations in determining whether laches may apply within a given period. International Tel. & Tel. Corp., 518 F.2d at 926, 928. A statute is analogous when it relates to actions at law of "like character" and remedies the same set of substantive rights. Id. Laches is rarely justified if the claim is filed before the analogous statute of limitations expires. Bouman v. Block, 940 F.2d 1211, 1227 (9th Cir.), cert. denied, ...