U.S. v. Roberts

Decision Date04 October 2002
Docket NumberNo. 02-10018 Non-Argument Calendar.,02-10018 Non-Argument Calendar.
Citation308 F.3d 1147
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Lowell E. ROBERTS, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Chet Kaufman, Fed. Pub. Def., Tallahassee, FL, Elizabeth M. Timothy, Fed. Pub. Def., Pensacola, FL, for Defendant-Appellant.

Terry Flynn, Leah A. Butler, Tallahassee, FL, Pamela A. Moine, Asst. U.S. Atty., Pensacola, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:

On July 20, 1993, a jury found appellant guilty on all four counts of an indictment: Count 1, conspiracy to possess with intent to distribute marijuana; Count 2, possession with intent to distribute marijuana; Count 3, possession of a firearm during a drug trafficking offense; Count 4, possession of a firearm by a convicted felon. On September 22, 1993, the district court sentenced appellant on Counts 1, 2 and 4 to concurrent prison terms of 97 months, and on Count 3 to a consecutive prison term of 60 months. On July 25, 1995, we affirmed appellant's convictions and sentences. United States v. Roberts, No. 93-3232 (11th Cir.1995) (unpublished).

On April 25, 1997, appellant, invoking the provisions of 28 U.S.C. § 2255, moved the district court to vacate his conviction and sentence on Count 3, which had been brought under 18 U.S.C. § 924(c)(1). He contended that in light of the Supreme Court's then-recent decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), he was entitled to a new trial, if not an acquittal, on that count because the evidence adduced at his trial had not established that he "carried" a firearm while committing the drug offenses described in Counts 1 and 2 of the indictment. On September 2, 1997, the district court denied relief, agreeing with the magistrate judge that the evidence presented at appellant's trial conclusively established the "carry" prong of 18 U.S.C. § 924(c).

On August 16, 2000, appellant applied to this court for leave to file a second or successive motion under § 2255. In his application, he acknowledged, under oath, that he had previously moved the district court for § 2255 relief. On August 25, 2000, we denied his application.

On October 3, 2000, after receiving our ruling, appellant filed in the district court a petition with this heading: "Writ of Habeas Corpus pursuant to the Constitution's Article 1, Section 9, Clause 2, and the recent Supreme Court ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)."1 The petition stated, "First and foremost, the petitioner would like to state that this is not a 28 U.S.C. § 2241 or 28 U.S.C. § 2255 [petition], therefore, it is not subject to the constraints imposed by the Anti-Terrorist [sic] and Effective Death Penalty Act (AEDPA), as this fall[s] directly under Article I, Section 9, Clause 2, of the U.S. Constitution." (Emphasis in original).2 Referring explicitly to § 2255, the petition stated, "Petitioner has never filed a 28 U.S.C. § 2255." At the end of the petition, under the "CERTIFICATE OF SERVICE" caption, appellant stated, "I HEREBY CERTIFY under penalty of perjury 28 U.S.C. § 1746, that everything written herein is correct and true to the best of my knowledge and belief...." On October 18, 2000, the magistrate judge to whom the matter had been assigned, entered the following order:

Before the court is petitioner's pro se request for a "writ of habeas corpus pursuant to Article 1, Section 9, Clause 2..."

On or before November 10, 2000, petitioner shall show cause as to why dismissal of this action should not be ordered and sanctions imposed due to petitioner's misrepresentation of having never filed a motion to vacate pursuant to 28 U.S.C. § 2255.

On December 1, petitioner filed a belated response in which he stated,

Petitioner filed said writ since it is the only remedy available to him ... that as far as his knowledge and belief, he has never filed a 28 U.S.C. § 2255, also due to the time constraints imposed by the Anti-Terrorist [sic] and Effective Death Penalty Act, he would be unable to file a 28 U.S.C. § 2255, therefore, Petitioner has been left no other recourse but to file a Writ of Habeas Corpus pursuant to Article 1, Section 9, Clause 2....

On December 12, 2000, the magistrate judge issued a Report and Recommendation, in which she recommended (1) that the district court deny appellant's petition on the ground that appellant was "simply attempting to rely upon the habeas provisions of the Constitution to escape the restrictions on second or successive Section 2255 motions and to circumvent the Eleventh Circuit's refusal to authorize a second Section 2255 motion," and (2) that "the clerk be directed to refer a copy of this Report and Recommendation ... to the U.S. Attorney for consideration of criminal prosecution."3 On January 2, 2001, the district court followed the magistrate judge's recommendation; it denied appellant's petition and directed the clerk to refer the matter to the U.S. Attorney "for consideration of criminal prosecution under 18 U.S.C. § 1621."

On July 10, 2001, a Northern District of Florida grand jury returned the instant one-count indictment against appellant, charging that, "on or about October 3, 2001," he "knowingly and willfully submit[ted] a written statement in a pleading under penalty of perjury under Title 28, United States Code, Section 1746, which he did not believe to be true as to a material matter," in violation of 18 U.S.C § 1621(2).4 A jury convicted appellant of the § 1621(2) offense, and the court sentenced him to 15 months' imprisonment, the term to begin after he served the sentences imposed on September 22, 1993.

He now appeals, contending that: (1) the district court erred in denying his motion for judgment of acquittal in which he claimed that the Northern District of Florida was an improper venue; (2) the district court erred in denying his motion for judgment of acquittal based on the "literal truth doctrine"; (3) the district court erred in failing to instruct the jury regarding the "literal truth doctrine"; (4) the district court erred in failing to instruct the jury that, in filing pleadings, pro se petitioners are held to less stringent standards than attorneys are; (5) the "disclaimer" he inserted in the petition precluded his prosecution for perjury; (6) the alleged perjurious statements were not material; (7) the district court abused its discretion in admitting into evidence his response to the magistrate judge's October 18, 2000 show-cause order; and (8) a fatal variance occurred, in that the indictment alleged that the crime occurred on October 3, 2001, one year after it actually took place (and some three months after the indictment was returned). We consider appellant's claims in turn.

Venue. Appellant asserts that venue was improperly laid in the Northern District of Florida. He contends that all of the acts constituting the alleged crime, as defined in § 1621(2), occurred in Jesup, Georgia, where he signed his petition; that, although he filed his petition in the Northern District of Florida, that act was irrelevant in determining the proper venue; that, because § 1621(2) does not expressly establish venue, the elements of the crime the statute creates determine where venue is proper; and that, because § 1621(2) does not include any involvement with a tribunal, or the taking of an oath, venue is established in the district where the document at issue is subscribed. Appellant supports his venue theory by relying on United States v. Noveck, 273 U.S. 202, 47 S.Ct. 341, 71 L.Ed. 610 (1927), a case that construed the predecessor statute to § 1621; he contends that § 1621(2) was drafted to punish only the act of falsely subscribing, not the filing of the document.

The Sixth Amendment and Rule 18 of the Federal Rules of Criminal Procedure guarantee the right of a defendant to be tried in the district in which the offense was committed. United States v. DiJames, 731 F.2d 758, 761 (11th Cir.1984) (citations omitted). A defendant may waive such right, however, by failing to raise a venue objection prior to trial. United States v. Dabbs, 134 F.3d 1071, 1078 (11th Cir.1998). In Dabbs, we noted a limited exception to this waiver rule, explaining that, when an indictment alleges an incorrect venue, but the defendant is not aware of the error until the prosecution presents its case, an objection to venue made at the close of the evidence is timely. Id. at 1078 n. 8. Here, appellant did not present his venue objection until the prosecution had rested its case. Because appellant was aware of the grounds underpinning his objection well before the prosecution rested (which no doubt explains why his attorney did not represent to the court that he did not become aware of those grounds until the prosecution rested), the Dabbs exception does not apply and appellant's claim that the case should have been brought in another forum (the Southern District of Georgia) fails.

The literal truth doctrine/judgment of acquittal. Appellant contends that because the pleading his attorney filed in the district court on April 25, 1997 was not styled as a § 2255 motion, and because he had not personally filed a § 2255 motion, his statements (in the instant habeas petition) that he had not done so were literally truthful. The district court, therefore, should have granted him a judgment of acquittal because a perjury conviction under § 1621 cannot be based upon a statement, however misleading or incomplete, that is the literal truth. As a lay person with no familiarity with the complex federal habeas corpus rules, he had no reason to believe that what his attorney filed on April 25, 1997, was a motion seeking § 2255 relief. Moreover, the inmate, Jorge Borjas, who prepared his...

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