U.S. v. Prince, 87-6008

Decision Date14 February 1989
Docket NumberNo. 87-6008,87-6008
Citation868 F.2d 1379
PartiesUNITED STATES of America, Plaintiff-Appellee, v. William B. PRINCE, Jr., Defendant-Appellant. Summary Calendar.
CourtU.S. Court of Appeals — Fifth Circuit

William B. Prince, Jr., Bryan, Tex., pro se.

Frances H. Stacy, Thomas Scott Woodward, Asst. U.S. Attys., Houston, Tex., for U.S.

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

Before RUBIN, GARWOOD, and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant William B. Prince, Jr. (Prince) was convicted, on his plea of guilty, of conspiracy to defraud the United States or its agencies in violation of 18 U.S.C. Sec. 371, embezzlement of United States funds in violation of 18 U.S.C. Sec. 641, and failure to file a 1984 income tax return in violation of 26 U.S.C. Sec. 7203. He brought this 28 U.S.C. Sec. 2255 habeas corpus petition to challenge several aspects of his conviction and sentencing, including the sufficiency of the charging instrument, the court's failure to inform him that he might be ordered to pay restitution, the court's failure to ascertain that his guilty plea was voluntary, the sentence to consecutive rather than concurrent prison terms, discrepancies between the judgment and the criminal information, and failure to comply with various specific requirements of Fed.R.Crim.P. 32 concerning the sentencing hearing. For reasons stated below, we affirm the district court's denial of appellant's requested relief.

Facts and Proceedings Below

Prince was charged in a three-count information. Count one charged that Prince, from March 1984 to December 1985, while he was comptroller for and supervised the finance department of the Houston-Galveston Area Council (HGAC), "a voluntary association of local governments and locally elected officials" which "received federal funds from federal agencies or federally funded state agencies," willfully "conspire[d]" with others "to defraud the United States, and any agency thereof participating in the funding of the" HGAC, and as "a part of said conspiracy" wrote some $338,000 worth of checks "from an HGAC account" to a dummy entity, which in turn passed some $264,000 of these funds over to Prince personally, in violation of section 371. Count two alleged that during the period March 1984 through November 1985 Prince "willfully and knowingly did steal and convert to his own use a thing of value of the United States and any department or agency thereof, to wit: ... $1,111,244.00 of federal funds which had been allocated by federal agencies or federally funded state agencies for distribution by the ... [HGAC] to various programs under its management," in violation of section 641. Count three charged that Prince willfully failed to file his 1984 income tax return, contrary to section 7203. Prince, who was represented by retained counsel throughout, waived indictment and pleaded guilty to all counts pursuant to a plea agreement under the terms of which he would not be otherwise or further charged as to these matters. Prince's waiver of indictment and guilty plea were accepted on September 15, 1986, following a Fed.R.Crim.P. 11 hearing. On October 27, 1986, a sentencing hearing was had and Prince was sentenced to four years on the conspiracy count (count one) and seven years on the theft of federal funds count (count two), such sentence to be consecutive to that on count one. Imposition of sentence on the income tax count (count three) was suspended for a probationary period of five years commencing after completion of the sentence on counts one and two. Prince was also ordered to make restitution to the HGAC in the amount of $1,022,166.49, payment of which was a condition of parole. On October 31, Prince, through his original trial counsel, filed a motion to postpone his voluntary surrender until "after" January 1, 1987, and this motion was denied on November 4, 1986. On December 10, 1987, the district court entered an order directing Prince to surrender to the Federal Prison Camp, Big Spring, Texas, on January 2, 1987, and Prince timely so surrendered. The judgment and commitment order was signed November 24, 1986.

On February 24, 1987, Prince, through new retained counsel, filed a motion to reduce or modify sentence pursuant to Fed.R.Crim.P. 35, and the district court denied the motion on March 5, 1987. Instead of directly appealing this denial, on April 6, 1987, Prince, through the same counsel who filed the February motion, requested the court to reconsider its ruling on the Rule 35 motion. On May 5, 1987, the district court ordered Prince to file a memorandum supporting his request within thirty days and ordered the government to file a response within thirty days of Prince's filing. Rather than filing the memorandum, on July 29, 1987, Prince filed the present pro se motion under section 2255 to vacate, set aside, or correct his sentence. The government opposed the motion, and the district court denied it, without a hearing, in a brief August 26 order. Prince filed a timely appeal, and we granted his motion to proceed in forma pauperis.

Discussion

Availability of relief under section 2255

The government intially submits, as it did below, two general counters to Prince's complaint. First, it is urged that the matters Prince raises are not within the scope of section 2255. In this connection, it is well settled that section 2255 does not reach alleged errors which are not of constitutional or jurisdictional magnitude and which could have been reached by a direct appeal. United States v. Capua, 656 F.2d 1033, 1037-38 (5th Cir.1981).

Secondly, the government contends that Prince's claims are barred under the "cause and prejudice" standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), because he did not appeal his conviction. Prince claims there is no bar because his failure to appeal was not a deliberate by-pass of his claims. The law in this connection is not well settled.

At the Supreme Court level, cases such as Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 1070-71 n. 3, 22 L.Ed.2d 227 (1969), support the deliberate by-pass standard, while Sykes, United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), and Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2644-48, 91 L.Ed.2d 397 (1986), point to the cause and prejudice test. None of these cases involve both section 2255 and a total failure to take a direct appeal of the original conviction. Our own cases are inconsistent. Pointing to cause and prejudice are Sincox v. United States, 571 F.2d 876, 879 (5th Cir.1978) (total failure to take direct appeal; section 2255; relying on Sykes as effecting a change in the law); Huffman v. Wainwright, 651 F.2d 347 (5th Cir.1981) (section 2254; failure to raise issue where direct appeal taken); Evans v. Maggio, 557 F.2d 430 (5th Cir.1977) (same); Clark v. State, 788 F.2d 309 (5th Cir.1986) (total failure to take direct appeal; section 2254; relies on Sincox ); and Meeks v. Cabana, 845 F.2d 1319, 1323 (5th Cir.1988) (same). A host of our pre-Sykes cases support the deliberate by-pass standard. See, e.g., McKnight v. United States, 507 F.2d 1034 (5th Cir.1975) (withdrawn direct appeal; section 2255). Our post-Sykes cases pointing in the same direction are Coco v. United States, 569 F.2d 367, 370-71 (5th Cir.1978) (failure to raise issue when direct appeal taken; section 2255); Thor v. United States, 574 F.2d 215, 219 (5th Cir.1978) (same); Buckelew v. United States, 575 F.2d 515, 519 (5th Cir.1978) (same); United States v. Capua, 656 F.2d at 1037 (total failure to take direct appeal; section 2255); United States v. McCollom, 664 F.2d 56, 59 (5th Cir.1981) (failure to raise issue when direct appeal taken; section 2255); United States v. Caceres, 745 F.2d 935, 936 n. 2 (5th Cir.1984) (same); and United States v. Smith, 844 F.2d 203, 206-07 (5th Cir.1988) (total failure to take direct appeal; section 2255). 1

We decline to resolve this conflict in our cases, because even if Prince's failure to take a direct appeal did not bar consideration of his complaints, his present appeal presents no reversible error in the dismissal of his section 2255 petition.

Sufficiency of the information

Prince claims that neither count one nor count two of the information state an offense. This is a claim which is cognizable under section 2255, at least if the information is so deficient as to deprive the convicting court of jurisdiction. See United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979); Capua, 656 F.2d at 1037.

As to count one, Prince, relying on Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), maintains that the HGAC is not the United States or an agency thereof, and that hence a conspiracy to defraud the HGAC is not a violation of section 371. Indeed, the Tanner Court did rule that a nongovernmental entity, "as the recipient of federal financial assistance and the subject of federal supervision, may [not] itself be treated as 'the United States' for purposes of Sec. 371." 107 S.Ct. at 2752. However, the Court also noted that a long line of cases has held that the scope of the section 371 phrase "to defraud ... in any manner or for any purpose" covers not only the appropriation of government property, but also reaches conspiracies entered into for the purpose of impairing, obstructing, or defeating the lawful function of any governmental department. Id. at 2751 (citing Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 1844, 16 L.Ed.2d 973 (1966), and Haas v. Henkel, 216 U.S. 462, 30 S.Ct. 249, 253, 54 L.Ed. 569 (1910)).

The contours of this "impairing government functions" violation of section 371 is somewhat hazy. The Tanner Court noted that "a conspiracy to defraud the...

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