U.S. v. Swindall, 95-9556

• Decision Date: 14 March 1997
• Docket Number: No. 95-9556,95-9556
• Citation: 107 F.3d 831
• Parties: 10 Fla. L. Weekly Fed. C 758 UNITED STATES of America, Plaintiff-Appellee, v. Patrick L. SWINDALL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 831

107 F.3d 831

10 Fla. L. Weekly Fed. C 758

UNITED STATES of America, Plaintiff-Appellee, v. Patrick L. SWINDALL, Defendant-Appellant.

No. 95-9556.

United States Court of Appeals Eleventh Circuit.

March 14, 1997.

Patrick L. Swindall, Stone Mountain, GA, pro se.

William P. Gaffney, Asst. U.S. Atty., Atlanta, GA, Kathleen A. Felton, U.S. Dept. of Justice, Criminal Division, Appellate Sec., Washington, DC, for plaintiff-appellee.

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

Before BLACK, Circuit Judge, RONEY and HILL, Senior Circuit Judges.

PER CURIAM:

Appellant Patrick L. Swindall appeals the district court's denial of his pro se petition collaterally challenging his convictions on six counts of perjury. We affirm.

I. BACKGROUND

A more comprehensive statement of the facts is set forth in this Court's opinion in United States v. Swindall, 971 F.2d 1531, 1534-39 (11th Cir.1992). Over seven years ago in June 1989, a jury convicted Appellant on nine counts of making false material declarations before a grand jury, in violation of 18 U.S.C. § 1623. The indictment charged that Appellant had discussed money-laundering transactions with an undercover agent and an intermediary and then falsely testified to a grand jury to conceal the extent of his involvement in these discussions. He was sentenced to concurrent terms of twelve months' imprisonment on each count and fined $30,000. Appellant appealed his conviction and subsequently filed two motions in the district court asserting that the prosecution's suppression of favorable evidence entitled him to either dismissal of the indictment or a new trial. ¹ On August 31, 1992, we affirmed his convictions on six of nine counts, but reversed convictions on three counts on Speech or Debate Clause grounds. United States v. Swindall, 971 F.2d 1531 (11th Cir.1992). In the same appeal, we also affirmed the district court's denial of Appellant's motions for dismissal or new trial. The Supreme Court denied certiorari on January 10, 1994. Swindall v. United States, 510 U.S. 1040, 114 S.Ct. 683, 126 L.Ed.2d 650 (1994).

On January 13, 1994, Appellant filed a motion under 28 U.S.C. § 2255, asserting, as he had done previously, that the prosecution's suppression of favorable evidence entitled him to either dismissal of the remaining six counts of conviction or a new trial. ² The district court denied the motion, and we affirmed. United States v. Swindall, 38 F.3d 574 (11th Cir.1994). Appellant completed service of his sentence in early 1995.

On September 6, 1995, Appellant filed a petition pursuant to 28 U.S.C. § 1651(a) seeking a writ of error coram nobis, arguing that his convictions should be vacated because of the Supreme Court's decision in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). The Gaudin decision invalidated the longstanding rule that the issue of materiality in false statement prosecutions is a question of law for the court, holding that it is a violation of the Fifth and Sixth Amendments not to submit that question to the jury. Id. at ----, 115 S.Ct. at 2314. Appellant's trial concluded well before the Gaudin opinion was issued on June 19, 1995. At trial, the judge followed the rule then in effect in the Eleventh Circuit and decided the issue of materiality without submitting that question to the jury. Appellant did not object to the court's determination of materiality either at trial or on direct appeal. ³ The district court denied Appellant's § 1651(a) petition for a writ of error coram nobis, holding that his claim was barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), as well as procedurally defaulted because of his failure to object at trial or raise the issue on appeal. The instant appeal followed.

II. STANDARD OF REVIEW

A Teague issue is purely one of law, and this Court reviews the district court's decision of it de novo. Spaziano v. Singletary, 36 F.3d 1028, 1041 (11th Cir.1994), cert. denied, 513 U.S. 1115, 115 S.Ct. 911, 130 L.Ed.2d 793 (1995). The district court's application of the cause and prejudice standard to procedural default issues is reviewed de novo. Macklin v. Singletary, 24 F.3d 1307 1312-13 (11th Cir.1994), cert. denied, 513 U.S. 1160, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995). The standard of review applicable to abuse of the writ issues is de novo as well. Id. at 1313.

III. DISCUSSION

A. Writ of Error Coram Nobis

Federal courts have authority to issue a writ of error coram nobis under the All Writs Act, now codified as 28 U.S.C. § 1651(a). The writ of error coram nobis is a limited remedy of last resort: "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." United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 252, 98 L.Ed. 248 (1954); see Lowery v. United States, 956 F.2d 227, 228-29 (11th Cir.1992); Moody v. United States, 874 F.2d 1575, 1576-77 (11th Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1137, 107 L.Ed.2d 1042 (1990); Rener v. United States, 475 F.2d 125, 127 (5th Cir.1973) (writ should be allowed only to "remedy manifest injustice").

In this case, Appellant attempts to do what the Supreme Court in Morgan instructed should be allowed in only the most compelling circumstances. Appellant seeks to continue litigating the legality of his conviction after his conviction has become final and he has exhausted his statutory right of review under 28 U.S.C. § 2255. The Supreme Court addressed the same concerns in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), where it held that a case decided after a petitioner's conviction and sentence became final generally may not be the basis for vacating that conviction. See also Stringer v. Black, 503 U.S. 222, 227, 112 S.Ct. 1130, 1135, 117 L.Ed.2d 367 (1992); Spaziano, 36 F.3d at 1042. The Supreme Court explained that the application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our legal justice system. Teague, 489 U.S. at 309, 109 S.Ct. at 1074. In Teague, the Supreme Court accommodated the competing demands of respecting good faith interpretations of existing law and assuring that individuals are not punished in a manner inconsistent with the Constitution by creating two narrow situations where new rules will be applied retroactively. Id. at 305-10; 109 S.Ct. at 1073-75. Consistent with these principles, we hold that if Teague bars a petitioner's claim relying on a case decided after his conviction and sentence became final, then he has not suffered such compelling injustice that would deserve relief pursuant to a writ of error coram nobis. In other words, if Appellant's claim is Teague-barred, then it is clearly outside the extremely limited scope of a writ of error coram nobis.

B. Teague

The Supreme Court has directed federal courts to use three steps in determining whether a claim is Teague-barred:

1. Whether the Teague rule is applicable, i.e., whether petitioner's conviction became final before the case upon which he relies was announced. ⁴

2. Whether the case upon which the petitioner relies announced a "new rule." ⁵

3. Whether either of two exceptions to the non-retroactivity of a new rule is applicable.

Caspari v. Bohlen, 510 U.S. 383, 389-90, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994); Spaziano, 36 F.3d at 1042.

1. Whether Appellant's Conviction Was Final Before Gaudin Was Issued

Appellant's conviction became final when the Supreme Court denied certiorari on January 10, 1994, more than a year before Gaudin was announced. The Teague rule is therefore applicable.

2. Whether Gaudin Announced a "New Rule"

A new rule is one that "breaks new ground or imposes a new obligation on the States or the Federal Government." Teague, 489 U.S. at 301, 109 S.Ct. at 1070. "To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id.

Prior to Gaudin, it was well established in the Eleventh Circuit that materiality is a question of law. United States v. Kramer, 73 F.3d 1067, 1074 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 516, 136 L.Ed.2d 405 (1996). In fact, every circuit except the Federal Circuit had held that judges should decide the materiality of false statements made to a grand jury under 18 U.S.C. § 1623. United States v. Gaudin, 28 F.3d 943, 957-58 (9th Cir.1994) (en banc) (Kozinski, J., dissenting) (collecting cases), aff'd, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). Federal courts had relied on Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692 (1929), for the proposition that materiality is a question of law for the judge. See id. at 298, 49 S.Ct. at 273 (holding that the question of pertinency was "rightly decided by the court as one of law"). The result in Gaudin required the Supreme Court to repudiate its previous position in Sinclair. Gaudin, 515 U.S. at ----, 115 S.Ct. at 2318-19. At the time of Appellant's trial, the result in Gaudin was not dictated by precedent because the district court's decision to consider the issue of materiality a legal issue for the court to decide was clearly a "reasonable, good-faith interpretation[ ] of existing precedents." Butler v. McKellar, 494 U.S. 407, 413, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347 (1990). The Supreme Court's rejection of settled law broke new ground, and therefore, Gaudin announced a new rule within the meaning of Teague.

3. Whether Either Of Two Exceptions To The Teague Rule Is Applicable

The first exception to the Teague rule is limited to rules that place a class of private conduct beyond the power of the government to proscribe, Teague, 489 U.S. at 311, ...