U.S. v. Rice, 4:04-CR-00139.

• Court: U.S. District Court — Southern District of Iowa
• Writing for the Court: Pratt
• Citation: U.S. v. Rice, 379 F.Supp.2d 1007 (S.D. Iowa 2005)
• Decision Date: 02 August 2005
• Docket Number: No. 4:04-CR-00139.,4:04-CR-00139.
• Parties: UNITED STATES of America, Plaintiff, v. Darwin G. RICE, Defendant.

379 F.Supp.2d 1007

UNITED STATES of America, Plaintiff, v. Darwin G. RICE, Defendant.

No. 4:04-CR-00139.

United States District Court, S.D. Iowa.

August 2, 2005.

William C. Purdy, U.S. Attorney's Office, Des Moines, IA, for USA, Plaintiff.

Alfredo G. Parrish, Parrish Kruidenier Moss Dunn, Boles Gribble & Cook LLP, B. John Burns, III, Federal Public Defender, Des Moines, IA, Curt N. Daniels, Chariton, IA, for Darwin G. Rice (1), Defendant.

MEMORANDUM OPINION AND ORDER

PRATT, District Judge.

I. INTRODUCTION

Before the Court is Defendant Darwin G. Rice's Motion to Vacate and Set Aside Jury Verdict and Request for Hearing in Nature of Coram Nobis (Clerk's No. 69).¹ In his motion, the Defendant requests that the Court issue the common law writ of coram nobis which, in effect, would vacate the jury verdict reached in this case and allow a new trial on the grounds that the Defendant, at trial, was served by ineffective counsel.

On October 6, 2004, the Defendant was found guilty by jury verdict of one count of making a false statement of material fact to the Farm Service Agency ("FSA"), in violation of 18 U.S.C. § 1001, and one count of removing, disposing, or converting to his own use property mortgaged or pledged to the Secretary of Agriculture, through the FSA, in violation of 18 U.S.C. § 658. At the end of the Government's case-in-chief and again at the close of evidence, the Court denied the Defendant's motion for a judgment of acquittal made under Federal Rule of Criminal Procedure 29. On November 30, 2004, the Court filed an Order (Clerk's No. 57) denying the Defendant's Motion for New Trial (Clerk's No. 54) made under Federal Rule of Criminal Procedure 33. Sentencing was originally set for January 14, 2005.

On January 7, 2005, present counsel for the Defendant filed his Notice of Appearance (Clerks' No. 60).² Sentencing was continued in light of appearance of new counsel, scheduling conflicts, and the Court's consideration of the present motion. A hearing on the present motion was held on July 5, 2005. At hearing, counsel for both parties presented oral argument and were given an opportunity to present evidence on the question of ineffective assistance of Defendant's trial counsel. The Court allowed supplemental briefing on the effect the recent Supreme Court's decision in Andersen v. United States, ___ U.S. ___, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005), might have on the present case, which the parties have done. See Clerk's Nos. 79, 82. The matter is fully submitted. Sentencing is presently scheduled for August 19, 2005.

II. ANALYSIS

A. Writ of Coram Nobis

1. The writ as post-verdict, but pre-judgment relief.

The first issue that must be addressed is whether the writ of coram nobis is available in a criminal case post-verdict, but pre-judgment. The modern-day recognition of the common law writ of coram nobis (or writ of error coram nobis), which allows a trial court to properly exercise its jurisdiction in a criminal setting, occurred in United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). The Court found the authority for the writ in the all-writs section of the Judicial Code, 28 U.S.C. § 1651(a), which allows all courts "established by Act of Congress" to issue "all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Id. at 506-507, 74 S.Ct. 247. The petition is appropriately heard by the district court in which the conviction was obtained. Id. at 512, 74 S.Ct. 247. The jurisdiction provided by the writ is necessarily of limited scope. Id. at 509 n. 15, 74 S.Ct. 247. It provides the power to a district court to vacate its judgments for errors of fact, where there are errors of the most fundamental character, so as to render "the proceeding itself irregular or invalid." Id. "Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice." Id. at 511, 74 S.Ct. 247.

In Morgan, the Court affirmed the use of the writ because the record was not clear regarding the defendant's waiver of counsel. Interestingly, the Morgan Court did not require evidence or proof that the trial judge did not have knowledge of the error. Id. at 511-12, 74 S.Ct. 247. The Court considered that absent any record on the subject of waiver, a hearing on the alleged constitutional violation was proper. See id. at 512, 74 S.Ct. 247 ("Where it cannot be deduced from the record whether counsel was properly waived, we think, no other remedy being then applicable and sound reasons existing for failure to seek appropriate earlier relief, this motion in the nature of the extraordinary writ of coram nobis must be heard by the federal trial court.")

Like the circumstances in Morgan, most Eighth Circuit coram nobis case law deals with post-judgment challenges brought by defendants. See, e.g., United States v. Little, 608 F.2d 296, 299 n. 5 (8th Cir.1979) (listings the types of situations in which the writ is proper: "Coram nobis lies only where the petitioner has completed his sentence and is no longer in federal custody, Gajewski v. United States, 368 F.2d 533 (8th Cir.1966), is serving a sentence for a subsequent state conviction, United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Azzone v. United States, 341 F.2d 417 (8th Cir.1965), or has not begun serving the federal sentence under attack, Thomas v. United States, 271 F.2d 500 (D.C.Cir.1959)"); see also Custis v. United States, 511 U.S. 485, 512 n. 7, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (stating that the writ of coram nobis is available, in the proper circumstances, to challenge a prior conviction relied upon at sentencing to enhance that sentence) (Souter, J., dissenting). "[T]he ... [coram nobis] motion is a step in the criminal case and not, like habeas corpus where relief is sought in a separate case and record, the beginning of a separate civil proceeding." United States v. Camacho-Bordes, 94 F.3d 1168, 1171 n. 2 (8th Cir.1996). In order to make the writ available: 1) "the petitioner must show a compelling basis" and 2) "the movant must articulate the fundamental errors and compelling circumstances for relief in the application for coram nobis." Id. at 1173. A third element that appears in many cases, and is assumed in others, requires the defendant to show he presently suffers adverse legal consequences which stem from the conviction he is challenging. See, e.g., Hunter v. United States, 317 F.Supp.2d 1147, 1148 (D.N.D.2004).

The defendant in Camacho-Bordes, while serving his sentence, was made subject to Immigration and Naturalization Service ("INS") deportation proceedings. He filed his motion on the grounds that the United States Attorney made a false promise in the plea agreement when he promised the defendant would not be deported. The district court found that, while the defendant was informed such a promise cannot be made by a government attorney, the government breached the plea agreement when it, through the INS, actively sought the defendant's deportation. Id. at 1174. The Court of Appeals reversed on the grounds that the plea agreement bound only the United States Attorney's Office, not the INS.

In United States v. Noske, 235 F.3d 405 (8th Cir.2000), the Court of Appeals affirmed the district court's determination that when an individual is in custody following the judgment under attack, 28 U.S.C. § 2255 is controlling and coram nobis relief, therefore, is unavailable.³ The Court of Appeals also denied coram nobis relief because it concluded the defendant did not show that an error of the most fundamental character had occurred. The defendant had sought relief based on a reduction in sentence given to her brother in a § 2255 action which she, herself, was refused.

The most compelling Eighth Circuit case, for the purposes of the present case, comes from the Eastern District of Missouri in United States v. Slay, 673 F.Supp. 336 (E.D.Mo.1987). Unlike classic coram nobis cases, which occur post-judgment and, most often, post-service of sentence, Slay concerns a district court's decision to postpone sentencing in order to consider the defendants' motion coram nobis in light of a Supreme Court ruling regarding the merits of the case, which was handed down immediately following trial and before judgment was entered. Id. at 340. Based on the new Supreme Court case regarding the merits, the district court set aside the guilty verdicts, but ordered a new trial on a remaining offense that did not require dismissal under the new law. Id.

As in the present case, the government in Slay argued that the defendants must use the appellate process to challenge the jury's guilty verdicts. Id. Because defendant Slay's co-defendants had filed timely Rules 29(c), 33 and post-trial 12(b)(2) motions, however, the district court decided to join Slay to those motions as it indicated it would do in pre-trial conferences. Id. at 344. Nevertheless, the district court went on to disagree with the government regarding the coram nobis motion before it, and added that "to the extent Rules 12(b)(2), 29(c), and 33 are unavailable to these defendants, the Court concludes that error coram nobis relief does lie." Id. The district court reasoned that if it did not grant "defendants relief under the Federal Rules of Criminal Procedure, then the Court would be forced to sentence defendants, and possibly incarcerate them,⁴ even though the Court believes that the jury's guilty verdicts were infirm." Id. The district court went on: "In this circumstance, the Court believes that the availability of the appeal is not an adequate remedy and that error coram nobis relief would lie. Therefore, to the extent the Court does not have jurisdiction under the Federal Rules of Criminal Procedure to set aside the jury's guilty verdicts...