U.S. v. Walgren

• Decision Date: 13 September 1989
• Docket Number: 88-3257,Nos. 88-3232,s. 88-3232
• Citation: 885 F.2d 1417
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gordon WALGREN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1417

885 F.2d 1417

UNITED STATES of America, Plaintiff-Appellee, v. Gordon WALGREN, Defendant-Appellant.

Nos. 88-3232, 88-3257.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 5, 1989.

Decided Sept. 13, 1989.

James K. Sells, Bremerton, Wash., McClusky, Sells, Ryan, Olbertz & Haberly, Catherine W. Smith and Howard M. Goodfriend, Edwards & Barbieri, Seattle, Wash., for defendant-appellant.

Stephen C. Schroeder, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before ALARCON and THOMPSON, Circuit Judges, and TASHIMA, ^* District Judge.

TASHIMA, District Judge:

BACKGROUND

Gordon Walgren, former Senate Majority Leader of the Washington State Legislature, was indicted on nineteen counts of bribery, mail and wire fraud, and violation of the Racketeer Influenced and Corrupt Organization Act ("RICO"). The indictment resulted from a two-year investigation by the Federal Bureau of Investigation ("FBI") into gambling and alleged political corruption in the State of Washington. At trial, the district court granted a motion for acquittal on six counts at the close of the government's case. On the remaining 13 counts, the jury found Walgren not guilty of five, failed to reach a verdict on five, and found him guilty on three counts: mail fraud, 18 U.S.C. Secs. 1341 & 1342 (Count XXIV), Travel Act, 18 U.S.C. Sec. 1952 (Count XVII), and RICO, 18 U.S.C. Sec. 1962 (Count II). Walgren was sentenced to three concurrent five-year terms of imprisonment. The convictions were affirmed on appeal, United States v. Bagnariol, 665 F.2d 877 (9th Cir.1981), and Walgren's petition for writ of certiorari was denied. Walgren v. United States, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). Walgren has served his sentence and completed his parole. He now seeks to have his mail fraud and RICO convictions vacated by writ of error coram nobis, and seeks a new trial on his Travel Act conviction.

Walgren's Travel Act conviction was based on allegations that he used the telephone with the intent to promote and carry on bribery in violation of state law and to promote and carry on extortion in violation of federal law. The conversation took place between Walgren and an FBI undercover agent, who was posing as a California businessman. During the conversation they discussed a pending state gambling bill and the potential sale, for an inflated price, of a trucking business in which Walgren had an interest. ¹

Walgren's mail fraud conviction was based on the mailing of a campaign disclosure form that "furthered a scheme to defraud" the citizens of Washington. The disclosure form listed political contributions by Citizens for Gordon Walgren, an independent committee supporting his then planned but unannounced 1980 campaign for State Attorney General. The jury found that Walgren caused the committee to fail to report the purchase and contribution of a "clipping service" from the undercover FBI agent.

The jury did not specify on which racketeering acts it based Walgren's RICO violation. We assume they relied on the mail fraud and Travel Act convictions because they found him not guilty of, or failed to reach a verdict on, all the other charges listed as predicate acts. ²

In 1984, Walgren filed two motions with the district court seeking a new trial on his Travel Act conviction and requesting that his mail fraud and RICO convictions be vacated pursuant to a writ of error coram nobis. After a number of earlier continuances, in July 1985, the magistrate granted an open-ended continuance "until further order of this court" so that Walgren could pursue a civil action under the Freedom of Information Act, 5 U.S.C. Sec. 552a ("FOIA"). Walgren re-noticed the motion for April 8, and again for May 6, 1988.

Walgren's motion for a new trial was based on asserted new evidence obtained from the FBI through his FOIA requests. The district court rejected his motion for a new trial concluding that its jurisdiction had lapsed because of the "grossly excessive" delay. Alternatively, the court also rejected the motion on the merits. United States v. Walgren, 695 F.Supp. 495, 503 (W.D.Wash.1988).

The coram nobis petition was based on the Supreme Court's decision in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). In McNally, the Court held that the mail fraud statute, 18 U.S.C. Sec. 1341, protects only tangible property rights, not the intangible rights of the citizenry to good government. Walgren argues that because the jury was instructed that it could convict him of mail fraud by finding that he furthered a scheme to deprive Washington citizens of the intangible right to honest government, he was convicted for an act which is not a crime. The magistrate agreed with Walgren, and recommended vacating both the mail fraud and RICO convictions. The district court disagreed with the magistrate's recommendation, and denied Walgren's request to vacate the convictions. 695 F.Supp. at 496-503. Walgren now appeals the district court's ruling on both motions.

DISCUSSION

The district court had jurisdiction under 18 U.S.C. Sec. 3231 and 28 U.S.C. Sec. 1651. We have jurisdiction under 28 U.S.C. Sec. 1291.

I. CORAM NOBIS

In United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 252, 98 L.Ed. 248 (1954), the Court held that coram nobis relief is available to vacate a conviction even when the defendant is no longer in custody. The writ provides a remedy for those suffering from the "lingering collateral consequences of an unconstitutional or unlawful conviction based on errors of fact" and "egregious legal errors." Yasui v. United States, 772 F.2d 1496, 1498, 1499 & n. 2 (9th Cir.1985). The All Writs Act, 28 U.S.C. Sec. 1651(a), authorizes district courts to issue the writ. Morgan, 346 U.S. at 506, 74 S.Ct. at 250. We review de novo the denial of the writ as if it were a dismissal of a claim under 28 U.S.C. Sec. 2255. E.g., United States v. Taylor, 648 F.2d 565, 571-73 (9th Cir.1981).

To qualify for coram nobis relief, the petitioner must demonstrate each of the following four factors:

"(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 v. United States, 828 F.2d 591, 604 (9th Cir.1987). While it recognized that Walgren could not have his convictions vacated by the more usual remedies, the district court held that Walgren failed to

prove the other three elements. We discuss each of these in turn.

A. Valid Reason For Not Attacking the Conviction Earlier

The district court declined to apply McNally retroactively to Walgren's conviction and ruled, in effect, that he should have raised the invalidity of the intangible rights theory on direct appeal. In a recent habeas corpus decision, we held that McNally is fully retroactive. United States v. Mitchell, 867 F.2d 1232, 1233 (9th Cir.1989) (per curiam). There being no principled basis for distinction, we now hold, as has the Fourth Circuit, that McNally is also fully retroactive in coram nobis proceedings. See United States v. Mandel, 862 F.2d 1067 (4th Cir.1988) (cited in Mitchell, 867 F.2d at 1233). ³

B. Adverse Consequences

Citing Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), Hirabayshi held that a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction. 828 F.2d at 606. "We have repeatedly reaffirmed the presumption that collateral consequences flow from any criminal conviction," and the government carries the burden of disproving this presumption. Id. ⁴

In Hirabayshi, we held that misdemeanor convictions could carry collateral legal consequences. "Any judgment of misconduct has consequences for which one may be legally or professionally accountable. See Miller v. Washington State Bar Ass'n, 679 F.2d 1313, 1318 (9th Cir.1982) (letter of admonition in attorney's permanent record for which he is professionally accountable constitutes sufficient adverse consequences for Article III.)" Id. at 606-07.

Despite this liberal presumption, the district court concluded that Walgren failed to demonstrate sufficient adverse consequences. 695 F.Supp. at 502. The district court noted that in Hirabayshi and Sibron, the courts reversed all charges against the defendants, while Walgren would still be burdened with at least one felony conviction, the Travel Act count. ⁵ Thus, vacating the mail fraud conviction would not have the same effect as vacating all of the convictions. ⁶ For example, based solely on his Travel Act conviction, Walgren still may not serve as executor of an estate, may be challenged for cause as a juror and may be denied the opportunity to be a notary public.

The one remaining tangible adverse consequence is if Walgren is convicted again of another crime, his sentence might be enhanced by the number of his previous convictions. The district court rejected this argument because a concurrent sentence was imposed on Walgren "treating the three counts as a single offense arising from a single course of conduct." 695 F.Supp. at 502. Although a defendant's record of past criminal conduct is relevant The Guidelines issued by the United States Sentencing Commission treat related counts charged in a single indictment as a single offense. United States Sentencing Commission Guidelines ("Guidelines"), Sec. 4A1.2(a)(2), Definitions and Instructions for Computing Criminal History, Prior Sentence Defined. When determining how many additional "points" to add to a defendant's criminal history category, a sentencing judge would only use the longest sentence of imprisonment if concurrent...