U.S. v. Dale, 97-3023.

• Citation: 140 F.3d 1054
• Decision Date: 14 April 1998
• Docket Number: No. 97-3023.,97-3023.
• Parties: UNITED STATES of America, Appellee, v. David M. DALE, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

140 F.3d 1054

UNITED STATES of America, Appellee, v. David M. DALE, Appellant.

No. 97-3023.

United States Court of Appeals, District of Columbia Circuit.

Argued March 16, 1998.

Decided April 14, 1998

Rehearing Denied June 18, 1998.

Appeal from the United States District Court for the District of Columbia (No. 90cr00027-01).

Jeffrey S. Parker, Fredericksburg, VA, argued the cause for the appellant.

Stuart G. Nash, Assistant United States Attorney, Washington, DC, argued the cause for the appellee. Mary Lou Leary, United States Attorney at the time the brief was filed, and John R. Fisher, Mary Patrice Brown, Thomas R. Eldridge and Mark H. Dubester, Assistant United States Attorneys, were on brief.

Before: WALD, SILBERMAN and HENDERSON, Circuit Judges.

Opinion for the court filed PER CURIAM.

Concurring opinion filed by Circuit Judge KAREN LeCRAFT HENDERSON.

PER CURIAM:

Appellant David M. Dale invokes the federal habeas corpus statute, 28 U.S.C. § 2255,¹ to challenge his fraud and conspiracy convictions on the ground that under United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), issued after Dale's convictions became final, the district court erroneously decided as a question of law, rather than remitting to the jury as a question of fact, the materiality of misrepresentations for which Dale was convicted of violating 18 U.S.C. § 1001.² Because Dale failed either to raise the alleged error during his criminal prosecution or to establish in this proceeding "cause and prejudice" to excuse his procedural default, we conclude that he is not entitled to the relief he seeks.

The details of Dale's charged offenses and of his trial are set out at length in United States v. Dale, 991 F.2d 819 (D.C.Cir.), cert. denied, 510 U.S. 1030, 114 S.Ct. 650, 126 L.Ed.2d 607 (1993), (Dale I) and it is unnecessary to repeat them here. At the end of the day the jury convicted Dale of conspiracy (18 U.S.C. § 3571) (count 1) and of six substantive offenses: subscribing to a false tax return (26 U.S.C. § 7206(1)) (count 2); attempted tax evasion (26 U.S.C. § 7201) and aiding and abetting therein (18 U.S.C. § 2) (count 4); wire fraud (18 U.S.C. § 1343) and aiding and abetting therein (18 U.S.C. § 2) (count 5); concealing facts by trick, scheme and artifice (18 U.S.C. § 1001) and aiding and abetting therein (counts 7 and count 9); and making false statements (18 U.S.C. § 1001) and aiding and abetting therein (18 U.S.C. § 2) (count 10). Before deliberations the judge had expressly instructed the jury that the misrepresentations alleged in violation of section 1001 (counts 7, 9 and 10) "are material." App. A82. On July 15, 1991 the trial judge sentenced Dale to 41 months' imprisonment on the conspiracy count and a concurrent 30-month sentence on each of the other 6 counts, to be followed by 2 years' supervised release. The judge also imposed a $350 special assessment, a $675,000 fine and a $58,000 assessment for incarceration costs. In an opinion issued April 6, 1993 we affirmed Dale's convictions and sentence with one exception — we reversed the count 2 conviction of subscribing to a false tax return, which merged with the count 4 conviction of attempted tax evasion, and remanded for appropriate resentencing. See Dale I. The United States Supreme Court denied Dale's petition for certiorari on December 3, 1993. Dale v. United States, 510 U.S. 1030, 114 S.Ct. 650, 126 L.Ed.2d 607 (1993). The district court resentenced Dale on August 24, 1994 in accordance with our remand. No appeal was taken from the new sentence.

On June 19, 1995 the United States Supreme Court issued its decision in United States v. Gaudin, holding that because materiality is an element of a section 1001 offense the Fifth and Sixth Amendments to the United States Constitution require that a conviction thereof rest on a jury finding of materiality. On February 8, 1996 Dale filed a motion in the district court for collateral relief from his convictions pursuant to 28 U.S.C. § 2255 on the ground that under Gaudin the trial judge usurped the jury's function by ruling as a matter of law that the misrepresentations alleged in counts 7, 9 and 10 were material. The district court denied the relief sought, concluding that Gaudin established a new rule of constitutional procedure that should not be retroactively applied to criminal convictions already final at the time the decision issued. Without reaching the retroactivity issue, we affirm the district court on the ground that Dale is procedurally barred from arguing Gaudin error in a habeas proceeding. Having failed to argue in his criminal prosecution that materiality was a jury issue, either before the district court or on appeal, Dale now "must show both (1) `cause' excusing his double procedural default, and (2) `actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982). To establish "actual prejudice," he "must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 170, 102 S.Ct. at 1596.³ Dale has failed to meet his burden.⁴

The three section 1001 convictions were based on Dale's failure to disclose interests in and relationships with foreign corporations on forms he filed with the Department of Defense to obtain security clearance. See Dale I, 991 F.2d at 828-29. In each case the filed form specifically requested the information withheld and Dale has suggested no facts or theory to rebut the district judge's legal conclusion that the charged nondisclosures were material to the Department's decision whether to grant clearance. Nor did Dale — or his co-defendant charged with the same nondisclosures — attempt to challenge the judge's materiality conclusion on direct appeal. In the absence of any basis for finding Dale's misrepresentations were not material, we cannot say that the judge's failure to submit materiality to the jury "worked to [Dale's] actual and substantial disadvantage." The failure therefore was not prejudicial.

Dale asserts that a Gaudin error "cannot be harmless, because it requires speculation about what a hypothetical jury could have decided, had it been allowed to do so." Reply Br. at 17 (citing Waldemer v. United States, 106 F.3d 729, 731-32 (7th Cir.1997)). We disagree. In Johnson v. United States, 520 U.S. 461, ___, 117 S.Ct. 1544, 1550, 137 L.Ed.2d 718 (1997), the Supreme Court held that the trial judge's Gaudin error was not "plain error" — so as to justify reversal on direct appeal in the absence of an objection made at trial — where "the evidence supporting materiality was `overwhelming,'" materiality was "essentially uncontroverted" and the appellant "presented no plausible argument" that the charged misrepresentation was not material. We can only conclude that the same error can in similar circumstances be nonprejudicial under the habeas standard which requires a "showing of prejudice" that "is significantly greater than that necessary under `the more vague inquiry suggested by the words "plain error."'" See Murray v. Carrier, 477 U.S. 478, 493, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (quoting Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1575-76, 71 L.Ed.2d 783 (1982)); see also Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736-37, 52 L.Ed.2d 203 (1977) ("The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal."); United States v. Saro, 24 F.3d 283, 287 (D.C.Cir.1994) (quoting Murray v. Carrier, 477 U.S. at 494, 106 S.Ct. at 2648-49).⁵

Finally, Dale argues — belatedly and improvidently in a post-argument letter filed with the court on March 20, 1998 purportedly pursuant to Local Rule 28(k)⁶ — that, even if he has not demonstrated prejudice he is entitled to collateral relief to prevent a "miscarriage of justice." It is true that a showing of "fundamental miscarriage of justice" may excuse default when cause and prejudice are not shown. See Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); United States v. McKie, 73 F.3d 1149 (D.C.Cir.1996). The petitioner must then "show that `a constitutional violation has probably resulted in the conviction of one who is actually innocent,'" that is, that "it is more likely than not that no reasonable juror would have convicted him" but for the error. Schlup, 513 U.S. at 327, 115 S.Ct. at 867 (quoting Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. at 2649-50). Having concluded that Dale failed to meet the habeas prejudice standard, we do not think he can possibly claim a miscarriage of justice which requires "a stronger showing than that needed to establish prejudice." Id. We therefore reject this last ditch argument.

For the foregoing reasons the judgment of the district court is

Affirmed.

KAREN LeCRAFT HENDERSON, Circuit Judge, concurring:

I agree with the majority opinion that, having failed to object to the judge's materiality determination at any stage of his criminal prosecution and having failed to establish in the habeas proceeding that he was prejudiced by the determination, Dale would be procedurally barred from raising the Gaudin error — if he were otherwise entitled to its benefit. He is not. In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), a plurality of the United States Supreme Court declared: "Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." 489 U.S. at 310, 109 S.Ct. at 1075. The plurality set...