U.S. v. Barber

• Decision Date: 18 October 1989
• Docket Number: Nos. 88-2402,88-2912,s. 88-2402
• Citation: 881 F.2d 345
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David B. BARBER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 345

881 F.2d 345

UNITED STATES of America, Plaintiff-Appellee, v. David B. BARBER, Defendant-Appellant.

Nos. 88-2402, 88-2912.

United States Court of Appeals Seventh Circuit.

Argued Feb. 17, 1989.

Decided July 14, 1989.

Rehearing and Rehearing En Banc Denied Oct. 18, 1989.

Michael B. Metnick, Metnick & Barewin, Diana N. Cherry, Springfield, Ill., for David B. Barber.

David E. Risley, Office of the U.S. Atty., Springfield, Ill., for U.S.

Before EASTERBROOK, RIPPLE, and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

David B. Barber appeals two judgments of the district court. His first appeal is from the district court's denial of a writ of error coram nobis to vacate a prior conviction for mail fraud; his second stems from the district court's ruling, in an unrelated proceeding, to revoke Mr. Barber's probation for three bankruptcy fraud convictions on the grounds that the defendant, while on probation, had made false statements to the district court and endeavored corruptly to influence officers of the court and the due administration of justice. The two appeals were consolidated; we now affirm both judgments of the district court.

I BACKGROUND

In late March 1982, Mark McFarland retained the defendant, former Springfield attorney David B. Barber, for representation in various civil, criminal, and bankruptcy matters. Before the bankruptcy court, Mr. Barber refused to disclose, and indeed actively concealed, a number of McFarland's assets. Lawyer and client had an unusual arrangement with respect to the payment of attorney's fees: Mr. Barber and McFarland agreed to plan the arson of several properties belonging to McFarland and to use the insurance proceeds to pay Mr. Barber.

McFarland, in the meantime, began to cooperate with law enforcement authorities, effectively precluding the scheme from ever attaining its goal. However, he continued to feign complicity with Mr. Barber. In one of several recorded phone conversations, Mr. Barber stressed that the fire had to appear accidental: "It had to be a clean electrical job." R.35 at 14. By mid-September, arrangements for the arson were complete. McFarland provided Mr. Barber with the insurance policies; Mr. Barber recommended the purchase of replacement protection, and he himself paid the additional premium. Finally, Mr. Barber drafted and mailed a promissory note to L.A. Jackson, a relative of McFarland, who was to act as the "torch."

The grand jury returned a twelve-count indictment against Mr. Barber, detailing incidents of mail and bankruptcy fraud. R.1. On June 10, 1983, Mr. Barber pleaded guilty to one count of mail fraud involving an arson-for-profit scheme, in violation of 18 Mr. Barber served thirteen months on the mail fraud conviction and was released to begin his five years of probation on the bankruptcy fraud charges. In August 1986, upon learning that McFarland was about to be sentenced for a conviction on an unrelated fraud, Mr. Barber wrote several letters to the United States Attorney's Office and the district judge presiding at McFarland's sentencing. In those letters, he urged that McFarland receive the stiffest possible sentence. These letters were written on fraudulently acquired stationery of local businesses and bore forged signatures of the owners. R.60. The letters claimed that the owners had been victims of McFarland's fraud. After some inquiry into the veracity of these letters and the discovery of Mr. Barber's fingerprints thereon, the defendant's probation officer filed a petition to revoke his probation on the bankruptcy fraud counts. The petition submitted that Mr. Barber's conduct violated two federal statutes, and thus probation should be revoked: Mr. Barber (1) made false statements to a district court and the United States Attorney's Office, in violation of 18 U.S.C. Sec. 1001, and (2) corruptly endeavored to influence an officer of the court in the discharge of his duty and the due administration of justice, in violation of 18 U.S.C. Sec. 1503. R.60.

U.S.C. Sec. 1341, and three counts of fraud on a bankruptcy court, in violation of 18 U.S.C. Sec. 152. R.33. On September 6, 1983, the district court sentenced the defendant to serve eighteen months' imprisonment on the mail fraud count, to be followed by concurrent sentences of five years' probation on the bankruptcy fraud counts. R.42. The defendant was also fined $15,000.

While the probation revocation was pending, Mr. Barber filed a motion to vacate his conviction for mail fraud, based on the Supreme Court's decision in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). This motion was denied in June 1988. In September, the district court revoked Mr. Barber's probation on the bankruptcy counts and sentenced him to concurrent five-year sentences. R.86.

II ANALYSIS

A. Vacation of Mail Fraud Conviction

In Appeal No. 88-2402, Mr. Barber submits that the district court should have issued a writ of error coram nobis vacating his conviction for mail fraud (18 U.S.C. Sec. 1341) on the ground that the Supreme Court decision in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), invalidated his underlying indictment. ¹ He applies for this form of collateral relief because, at the time of his application, he no longer satisfied the This court recently reviewed the requirements for a writ of error coram nobis in United States v. Keane, 852 F.2d 199 (7th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 2109, 104 L.Ed.2d 670 (1989), and again in United States v. Doe, 867 F.2d 986 (7th Cir.1989). In Keane, the court set forth four components to the petitioner's burden. The petitioner must show that: (1) the claim could not have been raised on direct appeal; (2) the claimed error is a defect of a type that "sap[s] the proceeding of any validity"; (3) the conviction produced lingering and still extant collateral civil disabilities; and (4) the error is of a type that "would have justified relief during the term of imprisonment." 852 F.2d at 202-03.

requirements for habeas corpus. ²

This case can be resolved most expeditiously by focusing on the second requirement. Here, we conclude that McNally affords the petitioner no basis for relief. In McNally, the Supreme Court reversed the conviction of a former state official for mail fraud because the indictment framed the offense as a scheme to defraud the state citizens of their intangible right to have public servants conduct business honestly. 483 U.S. at 354, 107 S.Ct. at 2878. The Court interpreted section 1341 as being directed at "false promises and misrepresentations as to the future as well as other frauds involving money or property." Id. at 359, 107 S.Ct. at 2881. Because the indictment before the Court did not allege that the state was "defrauded of any money or property," id. at 360, 107 S.Ct. at 2882, but, rather, solely the violation of the citizens' intangible rights, the Court reversed. See also Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987). McNally has been reviewed extensively by this court. See, e.g., Lombardo v. United States, 865 F.2d 155 (7th Cir.1989); Doe, 867 F.2d at 988-89; Moore v. United States, 865 F.2d 149 (7th Cir.1989); United States v. Bailey, 859 F.2d 1265 (7th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 796, 102 L.Ed.2d 787 (1989); Keane, 852 F.2d at 205; Ward v. United States, 845 F.2d 1459 (7th Cir.1988); United States v. Eckhardt, 843 F.2d 989 (7th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 106, 102 L.Ed.2d 81 (1988); United States v. Gimbel, 830 F.2d 621 (7th Cir.1987). Our cases manifest a single principle: McNally holds that mail fraud convictions must be based on schemes to defraud money or property. "[T]he common thread running through 'intangible' rights cases is that they involve rights whose violation would ordinarily result in no concrete economic harm; that is not the case here." Bailey, 859 F.2d at 1276 (emphasis supplied); see also United States v. Wellman, 830 F.2d 1453, 1462 (7th Cir.1987).

In the case before us, the rights are those of the insurance companies; if the scheme had been successful as to the burning of McFarland's property, concrete economic harm would have occurred. Nevertheless, Mr. Barber makes a novel and, in our view, strained argument in an attempt to bring his conviction within the holding of McNally. He argues, in essence, that he did not plead guilty to a scheme to defraud others of economic rights because the government's detection of his scheme before he brought it to fruition precluded the possibility of economic loss to the victims. It is true that the indictment does not allege an actual monetary or economic loss to any insurance company. However, it is not necessary that an indictment charging mail fraud contain such an allegation. As our colleagues on the Tenth Circuit have noted, the "offense has two elements: (1) the act of having devised or devising a scheme or artifice to defraud or attempt to defraud, and (2) use of the mails willfully to carry out an essential step of the scheme to defraud." United States v. Aigbevbolle For the same reason, we cannot accept Mr. Barber's suggestion that he deserves relief because, once the government discovered the plot, they supplied fictitious names of properties and fictitious insurance policies on those properties thus precluding the possibility of actual monetary loss. Despite this attempt to cast his argument "in the cloth of legal impossibility," Aigbevbolle, 827 F.2d at 666 (footnote omitted), the essential point remains that the crime alleged was complete when the scheme was devised and the letter mailed. The fact that actual economic harm did not occur does not bring the indictment within the holding of McNally.

                827 F.2d 664, 666 (10th Cir.1987).  Therefore, it is sufficient that the indictment alleged a fraudulent scheme that had the potential, had it been successful, to have an economic impact on

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