U.S. v. Riedl

• Citation: 496 F.3d 1003
• Decision Date: 06 August 2007
• Docket Number: No. 06-10424.,06-10424.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brigitte RIEDL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

496 F.3d 1003

UNITED STATES of America, Plaintiff-Appellee, v. Brigitte RIEDL, Defendant-Appellant.

No. 06-10424.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 2007.

Filed August 6, 2007.

Kenneth Owen (argued), Castro Valley, CA, for the appellant.

Edward H. Kubo, Jr., United States Attorney, and Rachel S. Moriyama (argued), Assistant United States Attorney, Honolulu, HI, for the appellee.

Appeal from the United States District Court for the District of Hawaii; Alan C. Kay, District Judge, Presiding. D.C. No. CR-98-00624-ACK.

Before: DAVID R. THOMPSON, PAMELA ANN RYMER and RAYMOND C. FISHER, Circuit Judges.

FISHER, Circuit Judge:

Brigitte Riedl was convicted of various offenses in 1999, including five counts of money laundering in violation of 18 U.S.C. § 1956(a)(3)(B), and served her resulting 66-month prison sentence. Although she has been released from custody, she now petitions for a writ of error coram nobis. She contends that the money laundering statute under which she was convicted is unconstitutionally vague, and that there was insufficient evidence that her activities affected interstate commerce.

We agree with the district court that Riedl's petition must be denied. She has failed to provide any valid reasons for waiting so long to challenge her convictions on these grounds, and thus plainly does not satisfy the requirements for the highly unusual remedy of coram nobis relief. See Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987) (adopting four factors as predicates for coram nobis relief, including that "valid reasons exist for not attacking the conviction earlier"). Riedl attempts to overcome her unjustified delay by invoking the equitable doctrine of laches, arguing that the government has not been prejudiced by her tardiness. Cf. Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir.1994) (addressing laches in coram nobis context). We reject the notion that a petitioner can employ laches in such a fashion. To follow Riedl's suggestion under the circumstances of this case would transform the extraordinary writ of coram nobis into a free pass for attacking criminal judgments long after they have become final.

I. BACKGROUND

Riedl was convicted by a jury in November 1999 on various counts, including five counts of money laundering in violation of 18 U.S.C. § 1956(a)(3)(B). The jury also found that nine properties Riedl owned were involved in the money laundering and hence subject to forfeiture. The court sentenced Riedl to 66 months in prison for her offenses.

Riedl's money laundering activities took place during a joint "sting" operation by the Honolulu Police Department (HPD) and the Federal Bureau of Investigation in 1997-98. Female undercover HPD officers initially identified themselves to Riedl as prostitutes and rented rooms by the night in her various properties. The officers later told Riedl that they had begun selling drugs and were flush with cash as a result. Riedl and the officers then came up with a scheme to convert the purported drug money into cashier's checks, which in turn were used as deposits for the purchases of various properties Riedl owned. Riedl was present each time the cashier's checks were procured, and she also prepared contracts for all of the real estate transactions. At all relevant times, the officers told Riedl they were purchasing her properties with drug money. Riedl was finally arrested, and the sting operation terminated, in October 1998.

Riedl served her prison sentence and later was deported to Austria in May 2004. She filed a petition for a writ of error coram nobis in January 2006, more than six years after her conviction, alleging that the money laundering statute under which she was convicted is unconstitutionally vague, and that the evidence at trial was insufficient to establish that her money laundering affected interstate commerce. Her petition explained the reasons for her failure to raise these challenges earlier as follows:

Because Ms. Riedl was deported to Austria, her ability to find competent counsel willing to review her case and pursue her legal remedies under coram nobis took some time. Also, her 66-month incarceration period, her diminished capacity, and the fact that the Government had seized nine of her real properties worth $2.7 million prevented her from attacking her convictions earlier.

The district court denied Riedl's coram nobis petition. The court agreed with Riedl that she had no other remedy available because she had already served her sentence, and that her money laundering convictions continued to have adverse consequences. However, the court ruled that the two other requirements for obtaining coram nobis relief — a valid reason for the delay in attacking a conviction, and a fundamental error in the underlying proceedings — were not satisfied. The court was unpersuaded by Riedl's explanations for her delay, because they did not account for her failure to assert her claims on direct appeal or through a 28 U.S.C. § 2255 petition. The court also found that the government was prejudiced as to Riedl's insufficient evidence claim, because some of the evidence the government presented at trial was no longer available, but not as to her void-for-vagueness claim, because no retrial would be possible if the money laundering statute were ruled unconstitutional. On the merits of the two claims, the court held that the money laundering statute clearly identifies the proscribed conduct and does not encourage arbitrary or discriminatory enforcement; and that Riedl's use of the First Hawaiian Bank and an escrow service for the money laundering created the requisite nexus with interstate commerce.

The district court entered its judgment in April 2006, and Riedl timely appealed.

II. STANDARD OF REVIEW

A district court's denial of a petition for a writ of error coram nobis is reviewed de novo. See Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002).

III. DISCUSSION

Both the Supreme Court and we have long made clear that the writ of error coram nobis is a highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable. In United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 98 L.Ed. 248 (1954), the Court characterized the writ as an "extraordinary remedy" that should be granted "only under circumstances compelling such action to achieve justice." See also Carlisle v. United States, 517 U.S. 416, 429, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996) ("`[I]t is difficult to conceive of a situation in a federal criminal case today where[a writ of coram nobis] would be necessary or appropriate.'") (quoting United States v. Smith, 331 U.S. 469, 475 n. 4, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947)) (second alteration in original). Similarly, we have described the writ as "extraordinary," Hirabayashi, 828 F.2d at 604, "used only to review errors of the most fundamental character," Matus-Leva, 287 F.3d at 760, and "fill[ing] a very precise gap in federal criminal procedure," Telink, 24 F.3d at 45.

In Hirabayashi, consistent with the extraordinary nature of coram nobis relief, we adopted the following framework for deciding when the writ should be issued:

[A] petitioner must show the following to qualify for coram nobis relief: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character.

Hirabayashi, 828 F.2d at 604. We have repeatedly reaffirmed this framework in the ensuing two decades. See, e.g., United States v. Kwan, 407 F.3d 1005, 1011 (9th Cir.2005); Matus-Leva, 287 F.3d at 760; Estate of McKinney v. United States, 71 F.3d 779, 781-82 (9th Cir.1995); United States v. McClelland, 941 F.2d 999, 1002 (9th Cir.1991); United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir.1989). Applying the second Hirabayashi factor, we hold that Riedl has not offered valid reasons for her delay in attacking her convictions. Considering the equitable doctrine of laches that Riedl cites under Telink, we hold that it does not supplant or restate the second Hirabayashi requirement, but rather constitutes a supplemental defense that the government may invoke when a petitioner seeks coram nobis relief.

A. Valid reasons for delay

Riedl asserts that her failure to raise her facial challenge to the statute and her insufficient evidence argument sooner was attributable to her deportation to Austria, her incarceration, her diminished capacity and the forfeiture of some of her properties. We agree with the district court that these reasons, both individually and in combination, do not justify her delay.

First, and most importantly, none of Riedl's reasons explains why she did not raise her void-for-vagueness or insufficient evidence claims during trial, on direct appeal or through a 28 U.S.C. § 2255 petition. The relevant law has remained the same throughout this litigation, and Riedl actually filed post-verdict motions with the district court and a direct appeal with this court, none of which mentioned her present claims. Notably, Riedl herself concedes that nothing prevented her from asserting her claims earlier, stating in her briefing that she "could have possibly raised the ... claims in the direct appeal to the Ninth Circuit or under 28 U.S.C. § 2255" (her emphasis). This concession is fatal to Riedl's request that the extraordinary writ of error coram nobis be issued here. See Maghe v. United States, 710 F.2d 503, 503-04 (9th Cir.1983) (denying coram nobis petition as untimely where claim could have been raised earlier and there were no sound reasons for the delay); cf. United States v. Keane, 852 F.2d 199, 202 (7th Cir.1988) ("Claims that could have been raised by direct appeal are outside the scope of...