U.S. v. Allard

• Decision Date: 08 June 1990
• Docket Number: No. 89-2155,89-2155
• Citation: 926 F.2d 1237
• Parties: UNITED STATES, Appellee, v. Raymond P. ALLARD, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1237

926 F.2d 1237

UNITED STATES, Appellee, v. Raymond P. ALLARD, Defendant, Appellant.

No. 89-2155.

United States Court of Appeals First Circuit.

Heard June 8, 1990.

Decided Feb. 28, 1991.

Alan R. Hoffman with whom Lynch, Brewer, Hoffman & Sands were on brief, for defendant, appellant.

Richard G. Stearns, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief, for appellee.

Before CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and TORRES, ^* District Judge.

TORRES, District Judge.

This is another chapter in the continuing saga of Raymond Allard. It is presently before us on Allard's appeal from the District Court's denial of his motion to withdraw a plea of guilty to mail fraud on the ground that he was not informed of and did not understand the nature of the charge against him. For reasons hereinafter stated, we vacate the District Court's order and remand for reconsideration of the defendant's motion.

BACKGROUND

On May 27, 1986, Allard pled guilty to Count One of a three count information charging him with mail fraud in violation of 18 U.S.C. Sec. 1341. The information alleges that he engaged in a "scheme ... to defraud the Commonwealth of Massachusetts, its citizens, and others " (emphasis added), the purpose of which was to enable him "to obtain fraudulently a license to practice medicine."

In Massachusetts, licenses to practice medicine are issued by the Massachusetts Board of Registration in Medicine (the "Board"). A limited license authorizes the holder to practice as an intern but only under the supervision of a specified hospital. Mass.Gen.Laws Ann. ch. 112, Sec. 9 (West 1983 & Supp.1990). A full license, on the other hand, is issued to physicians who have fulfilled all applicable requirements including satisfactory completion of an internship. Mass.Gen.Laws Ann. ch. 112, Sec. 2. In order to obtain a limited license, the applicant must be a graduate of an accredited medical school. If the school is one outside of the United States, he or she must also pass an examination administered by the Educational Commission for Foreign Medical Graduates (the "ECFMG"). See Mass.Gen.Laws.Ann. ch. 112, Sec. 2.

In this case, the record reveals that Allard had an undergraduate degree in veterinary science and served as a medical corpsman during the Vietnam War. However, his grades fell short of the level required for admission to a medical school in the United States so he enrolled at the Universidad del Noreste located in Tampico, Mexico. While there, he discovered what he thought was a quicker way to achieve his career objective. He made arrangements to purchase a diploma from the Universidad Centro de Estudios Tecnologicos ("CETEC"), located in the Dominican Republic, without attending any classes there.

The information describes "the scheme" with which Allard was charged to include the following chronology of events. On September 2, 1982, Allard applied to take the ECFMG examination. In his application he falsely represented that he had satisfactorily completed a number of courses at CETEC and that he would graduate from that institution in June of 1983. Based on those misrepresentations, Allard was allowed to take the examination.

On November 22, 1982, Allard applied to Worcester City Hospital ("Worcester Hospital") for a position as an intern and once again falsely represented that he had completed various courses at CETEC and that he expected to graduate in June, 1983. Four months later, after apparently passing the ECFMG examination, Allard applied to the Board for a limited license to practice as an intern at Worcester Hospital. In that application too, he repeated the misrepresentations regarding his qualifications.

Based on these false representations, Worcester Hospital eventually accepted him into its internship program. Allard began working there in June, 1983, after additional materials he mailed to the Board on June 20 evidently caused it to issue him a limited license while his application for a full license was pending.

The information contains three counts. Count One is based upon the June 20, 1983, mailing to the Board, and Counts Two and Three are based upon use of the mails in connection with Allard's November 22, 1982, application to Worcester Hospital for an internship and the subsequent notification of his appointment. The facts outlining the entire scheme are incorporated by reference into all three counts.

Allard's plea to Count One was entered pursuant to an agreement with the government that called for dismissal of the remaining two counts and a recommendation that he receive a suspended sentence. On May 27, 1986, the District Court conducted a hearing for the purpose of determining whether Allard's plea should be accepted. During the course of the plea colloquy, the District Court explained the charge to which Allard was pleading as follows:

Now, the information in Count 1, the count to which you are offering to plead guilty, accuses you of having engaged in a scheme to defraud the Commonwealth of Massachusetts, and by indirection, its citizens, by claiming to have been graduated from a Medical School, when, in fact, you knew that you had not so graduated; and by having sent in furtherance of that scheme, a letter to the Massachusetts Board of Registration in Medicine on June 20th, 1983, including a $25 fee and an application for a limited medical license....

And what the Government will have to prove in order to sustain that charge is that you did, in fact, engage in such a scheme; that there was such a scheme to get a medical license, or limited medical license, without the necessary prerequisites, as defined by statute and regulation, and that, in fact, you did mail a letter in furtherance of the scheme or caused such a letter to be mailed.

Change of Plea Transcript at 5-6, May 27, 1986 (emphasis added).

After Allard assured the Court that he understood the charge and acknowledged that he had misrepresented his credentials to the Board, the Court accepted his plea. Accordingly, pursuant to the government's recommendation, Allard was given a two-year suspended sentence and placed on probation for a period of two years upon the condition that he perform 500 hours of community service. ¹ At the same time, the government's motion to dismiss Counts Two and Three was granted.

The next development occurred on June 24, 1987, when the Supreme Court decided McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). In that case, it was held that the mail fraud statute applies only to attempts to obtain money or property and does not extend to schemes to deprive the citizenry of its intangible right to good government.

Shortly after the issuance of that opinion, Allard moved to vacate his conviction or set aside his sentence pursuant to 28 U.S.C. Sec. 2255 contending that a license to practice medicine was not "property" within the meaning of McNally. The District Court agreed with that contention, and on February 26, 1988, entered an order vacating the conviction and dismissing the information. ² In so doing, the Court expressly rejected the government's contention that, even if the Board could not have been deprived of any property, the information was still sufficient to charge a scheme to defraud Worcester Hospital. In that connection, the Court stated:

The government does argue that the information can be construed to allege a deprivation of Worcester City Hospital's right to the professional services and qualifications for which it bargained when it hired defendant as a medical intern. That, however, is not what the information charges. Although the information does state that the result of the scheme was that defendant "did in fact improperly practice medicine and treat patients," it is the purpose, rather than the outcome, of the scheme that is crucial to a charge under section 1341.... The information in this case clearly states the purpose: to obtain a medical license. Any employment by Worcester City Hospital was incidental to the true goal of the scheme, as charged.

Memorandum of Decision at 3-4, February 25, 1988 (emphasis added).

The government appealed that order asserting both that the District Court misconstrued the information by reading it to include only the Commonwealth as a victim of Allard's scheme and also that the Commonwealth had a sufficient property interest in medical licenses to satisfy McNally. In considering that appeal, this court held that the information was sufficient to fairly identify and describe the attempt to obtain an internship at Worcester Hospital as part of the scheme to defraud and not merely incidental to it. Thus, we stated:

Allard's Information meets every test for sufficiency recognized in this circuit. It fairly describes the crime and the victims. It describes the offense "with sufficient clarity to show a violation of law, and enable the accused to know the nature and cause of the accusation against him."

United States v. Allard, 864 F.2d 248, 250 (1st Cir.1989) (citations omitted) ("Allard I ").

Accordingly, this Court vacated the District Court's ruling and remanded the case for further proceedings without reaching the McNally question. However, in so doing, we made the following observation in a footnote:

We recognize that the broadest possible construction of an instrument may not be its most obvious reading. In some cases, the generous construction afforded an information or indictment on collateral attack could differ materially from a defendant's understanding of the charges at the time he pled to the information. We do not suggest this was the case here, but because we are cognizant of the possibility, we merely point out that, even in such circumstances, a defendant is not remediless. He can move to withdraw his guilty plea and the district court, if it finds that the variation between a defendant's perceptions and the construction necessary to sustain...