U.S. v. Sawyer, 00-1105

• Decision Date: 04 October 2000
• Docket Number: N,No. 00-1105,00-1105
• Citation: 239 F.3d 31
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, Appellant, v. F. WILLIAM SAWYER, Defendant, Appellee. o. 00-1330 Heard
• Court: U.S. Court of Appeals — First Circuit

Page 31

239 F.3d 31 (1st Cir. 2001)

UNITED STATES OF AMERICA, Appellant, v. F. WILLIAM SAWYER, Defendant, Appellee.

No. 00-1105, No. 00-1330

United States Court of Appeals For the First Circuit

Heard October 4, 2000

Decided January 31, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Ben T. Clements, Assistant United States Attorney, with whom David S. Mackey, Acting United States Attorney, was on brief, for appellant.

Thomas R. Kiley, with whom Gregory S. Gilman and Cosgrove, Eisenberg & Kiley, P.C. were on brief, for appellee.

Before Boudin, Circuit Judge, Cyr, Senior Circuit Judge, and Lipez, Circuit Judge.

LIPEZ, Circuit Judge.

The United States appeals from a judgment of the district court granting F. William Sawyer a writ of error coram nobis, vacating his guilty plea to a one-count information charging him with honest services mail fraud in violation of 18 U.S.C. §§ 1341 and 1346, and ordering that his record be expunged. The district court based its decision on a recent opinion of the Supreme Court, United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999), construing the federal gratuities law, 18 U.S.C. § 201, to require that the prosecution prove a link between the act of a public official and the gratuity received by the official for or because of that act. Sawyer contended, and the district court agreed, that the information to which he pled guilty required proof of a violation of the similarly worded Massachusetts gratuity law, chapter 268A, section three. Concluding that this state gratuity law should be interpreted in light of Sun-Diamond, the district court found that the government had to prove that Sawyer gave gratuities to public officials for specific official acts. Noting that the government had not even alleged a link between the gratuities and identifiable, specific official acts, the court ruled that Sawyer was prosecuted "for an act that the law does not make criminal," and that his conviction "was a legal error of fundamental proportion," to be redressed by the issuance of a writ of coram nobis.

We conclude that the information to which Sawyer pled guilty did not require proof that he violated the Massachusetts gratuity statute. Moreover, there was sufficient evidence to prove Sawyer's guilt of honest services mail fraud apart from proof that he violated any state law. There was no fundamental error in his plea of guilty. The writ should not have issued. We reverse the judgment of the district court.

I.

This appeal comes to us following a long history. We recount only those facts that are relevant to our analysis here, and refer to our decisions in United States v. Sawyer, 85 F.3d 713, 720-22 (1st Cir. 1996), and United States v. Woodward, 149 F.3d 46, 51-54 (1st Cir. 1998), for a more detailed recitation of the circumstances giving rise to Sawyer's prosecution.

Sawyer was employed by the John Hancock Mutual Life Insurance Company ("Hancock") as a lobbyist in its Governmental Relations Department. As part of his responsibilities, he tracked the progress of pending legislation in the Massachusetts legislature. He also lobbied legislators, particularly members of the Legislature's Joint Insurance Committee, to adopt positions favorable to Hancock's interests in the insurance industry. In order to cultivate goodwill with these individuals, Sawyer paid for numerous meals, rounds of golf, and other entertainment on their behalf. Sawyer treated these activities as business expenses and submitted monthly expense vouchers to Hancock's accounting department for reimbursement.

Sawyer and a group of legislators travelled to Puerto Rico in December 1992 for a legislative conference, and Hancock reimbursed Sawyer approximately $4,000 for entertainment expenses incurred during that trip. In April, 1993, the Boston Globe began an investigation of Sawyer's expenditures in Puerto Rico, and the Globe's inquiries to Hancock prompted the company to conduct an internal review of Sawyer's legislative expenditures. Shortly thereafter, the United States Attorney's Office for the District of Massachusetts commenced its investigation of Sawyer's allegedly illegal expenditures.¹

A grand jury returned an indictment against Sawyer on July 7, 1994, charging him with violations of federal gratuity and bribery statutes, including 18 U.S.C. §§ 1341 and 1346, as well as violations of the Travel Act.² Following a jury trial lasting nine days, the jury convicted him on 33 counts,³ and the trial court sentenced him to one year and one day in prison. Sawyer then appealed his convictions and sentence to this Court. In an opinion issued on May 30, 1996, we vacated Sawyer's convictions because we concluded that the jury instructions might have allowed the jury to convict Sawyer on an improper basis.

Following remand, the U.S. Attorney's Office decided to prosecute Sawyer again. On November 27, 1996, pursuant to a plea agreement, Sawyer pled guilty before Judge Harrington to a one-count information charging him with honest services mail fraud under 18 U.S.C. §§ 1341 and 1346. As part of the plea agreement, the prosecution dismissed the original indictment of July, 1994. The court was clearly troubled by the government's prosecution of Sawyer's case at the time his plea was entered. At the plea hearing, the court commented:

This case demonstrates the threat to the liberty and reputation of individuals when the state's gratuity and gift laws administered by the Massachusetts State Ethics Commission and typically enforced by the imposition of civil penalties can be selectively transformed into a serious federal felony under the broad language and elastic interpretation of the federal criminal fraud statute.

This case illustrates an innovative prosecutorial process called the "federalization" of state laws. As the Court of Appeals stated, "prosecutions on facts like these have not generally been brought." The threat is exacerbated here because this "federalized" prosecution is applied for the first and only time against a state lobbyist who is not himself a public official.

This case raises a grave concern in my mind as to whether a constituent element of due process, namely, adequate notice of the offense for which one is charged, and whether the fundamental principle of the criminal law that criminal statutes must be strictly, not expansively, construed have been complied with. A defendant must be plainly apprised in advance that his conduct is criminal so that he can possess the requisite "criminal intent" necessary to be branded a felon.

I do not condone defendant's conduct, but assert that it would have been more just for any ethical irregularity on his part specifically prescribed under state statutes in the payment of golfing fees and dinner expenses to have been pursued by the Massachusetts State Ethics Commission or in the Massachusetts courts and not be selectively used as a basis for a federal prosecution for the serious felony of criminal fraud.

The fact that even the government acknowledges that criminal fraud is not intended here is established in my mind by the fact that after this wrong and tortuous ordeal they are able to enter into a plea agreement where a man is allowed to plea[d] to one count of a criminal information that charges that he mailed one mailing in furtherance of the fraud in the amount of about a $183 [sic].

My question is, does this result justify the long ordeal that this defendant has undergone? I don't think so.

Despite this uneasiness with the government's decision to prosecute Sawyer, Judge Harrington accepted his plea, sentenced him to one year of probation, and ordered that he pay a fine and a special assessment.

In July, 1999, nearly two years after Sawyer completed his probation, and paid the monies assessed against him, he petitioned the district court for a writ of error coram nobis on the basis of the Supreme Court's Sun-Diamond decision. This petition was brought before Judge Harrington. As noted, Judge Harrington granted the writ, vacated his plea, and ordered the expungement of his record, thereby prompting this appeal by the government. We review de novo the court's legal conclusions in granting the writ, see United States v. Camacho-Bordes, 94 F.3d 1168, 1173 (8th Cir. 1996); we review its findings of fact for clear error, see United States v. Blanton, 94 F.3d 227, 230 (6th Cir. 1996).

II.

In reaching our decision in this case, we do not have to rule on the government's argument that coram nobis relief is unavailable to correct fundamental errors of law. Nevertheless, we provide some background on the writ to provide the context for our fundamental error of law analysis.

Pursuant to the All Writs Act, federal courts have the authority to grant writs that were traditionally available at common law. See 28 U.S.C. § 1651. The writ of error coram nobis⁴ originated in the sixteenth century as a means to allow a trial court to correct its own mistakes of fact. See LaFave, Israel & King, Criminal Procedure, § 28.1(c) (2d ed. 1991). Before coram nobis emerged, trial courts did not have the authority to correct their own errors, and appellate courts could consider only alleged mistakes of law. See id. Accordingly, coram nobis originally was developed to fill this gap by correcting errors of fact that the trial court could not have known but which, if known at the time of trial, would have prevented entry of judgment. See id. In its more modern usage, the writ was available in criminal cases "whether the error was in fact or law," but applied "only to that very small number of legal questions which concerned the regularity of the proceeding itself." United States v. Mayer, 235 U.S. 55, 68 (1914) (quotations omitted).

For example, the writ was available where the defendant was an escaped slave,...