United States v. Caso
| Decision Date | 10 January 2012 |
| Docket Number | Criminal No. 07–332 (RCL) |
| Citation | 200 F.Supp.3d 227 |
| Parties | UNITED STATES of America v. Russel J. CASO, Jr., Defendant. |
| Court | U.S. District Court — District of Columbia |
Mary Ann Snow, U.S. Attorney's Office, Special Proceedings Section, Richard C. Pilger, U.S. Department of Justice, Public Integrity Section, Washington, DC, for United States of America.
Elizabeth G. Oyer, Office of the Federal Public Defender for the State of MD, Baltimore, MD, for Defendant.
Before the Court is defendant Russell J. Caso, Jr.'s Motion to Vacate [27] his sentence under 28 U.S.C. § 2255. Upon consideration of the motion, the government's opposition [36], the defendant's reply [40], the applicable law, and the entire record herein, the Court will deny the motion.
The government filed an information [1] against the defendant on December 4, 2007 charging him with conspiracy to commit honest services wire fraud, in violation of 18 U.S.C. §§ 371, 1343, 1346. The defendant signed a plea agreement [6] on December 7, 2007, and Judge Henry Kennedy entered his plea that same day. According to the government's statement of offense [4], the defendant acted as a legislative assistant and then as Chief of Staff to an unnamed member of the United States House of Representatives, referred to as Representative A, from January 2004 to January 2007. During that time period, Representative A served on the governing counsel of an unnamed Firm, referred to as Firm A. Firm A, a non-profit consulting firm, worked on trade issues with American businesses operating in Russia. Firm A sought funding to develop a joint missile defense project, referred to as Proposal A, and to develop a program to reduce the proliferation of biological and chemical weapons from Russia to rogue nations, referred to as Proposal B. Firm A sought the assistance of Representative A and his staff in attempting to secure federal funding for those projects.
Firm A hired the defendant's wife on or about April 2005 to edit drafts of proposals A and B. The defendant's wife finished this work in May 2005, for which Firm A paid her $1,500. Firm A then made a series of payments to the defendant's wife over the course of the summer totaling $17,500, even though the defendant's wife did not do substantial additional work for Firm A. The defendant knew that the market value of the services performed by his wife for Firm A was not $19,000. Firm A and the defendant's wife discussed giving the defendant's wife a larger role in the firm, particularly if the firm secured federal funding for proposals A or B, but the funding did not accrue and the defendant's wife declined to continue working for the firm.
The defendant's position required him to submit annual Financial Disclosure Statements regarding various sources of income. Schedule I of each statement instructs respondents to list On the statement for calendar year 2005, the defendant intentionally omitted his wife's income from Firm A despite knowing that he was required to list this income. The defendant omitted the information because he knew it revealed a conflict of interest between his official position and his wife's finances. The defendant signed the statement on May 15, 2006, representing that the disclosures contained therein were true, complete, and correct. The defendant and the General Secretary of Firm A had an understanding that the payments to the defendant's wife should remain undisclosed.
During that same calendar year, Representative A forwarded proposals A and B to the State Department, and the defendant organized meetings in which he and Representative A made presentations soliciting funding for the proposals from Executive Branch agencies such as the State Department, the Department of Energy, and the National Security Council.
The government's proposed elements of the offense [8] detail the elements of the conspiracy charge, as well as the object of the conspiracy, honest services wire fraud. Specifically, the government represented that the defendant's failure "to disclose a conflict of interest that resulted in personal gain" constituted a "scheme to fraudulently deprive another of the intangible right of honest services" under 18 U.S.C. §§ 1343, 1346. The government further represented that the non-disclosure was material.
Judge Kennedy sentenced the defendant on July 30, 2009 to three (3) years of probation. The defendant did not take an appeal. The Supreme Court on June 24, 2010 decided Skilling v. United States , 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). In that case, the defendant, former Enron president Jeffrey Skilling, challenged as unconstitutionally void for vagueness 18 U.S.C. § 1346, which defines "scheme or artifice to defraud" for the purposes of mail and wire fraud, 18 U.S.C. §§ 1341, 1343, to include deprivations of "the intangible right of honest services." In response, the Court construed § 1346to criminalize "only the bribe-and-kickback core" of honest services fraud, i.e. , deprivations of the intangible right of honest services that involve an official taking a bribe or a kickback in return for official action. Skilling , 130 S.Ct. at 2931 (emphasis in original). Accordingly, post–Skilling , mere failures to disclose a conflict of interest in the absence of bribes or kickbacks do not constitute deprivations of "the intangible right of honest services," 18 U.S.C. § 1346, as that term relates to mail or wire fraud.
The defendant filed the instant motion on April 25, 2011, seeking to vacate the judgment against him pursuant to 28 U.S.C. § 2255.
The defendant argues habeas relief is warranted because the conduct to which he admitted in the statement of the offense—which did not stipulate the defendant's receipt of a bribe or a kickback—does not constitute an offense under § 1346 following Skilling. Were it that simple. Federal courts' statutory authority to grant habeas relief implicates a tangled web of procedural requirements that can derail even the most meritorious of arguments. Fortunately, the government and the defendant largely agree as to where this case fits within that web.
The federal habeas statute, 28 U.S.C. § 2255, includes a one-year statute of limitations period. 28 U.S.C. § 2255(f). That limitations period normally begins to run on the date on which the judgment of conviction becomes final. Id. § 2255(f)(1). However, where a habeas petition is predicated on a right that "has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review," the statute of limitations begins to run on "the date on which the right asserted was initially recognized by the Supreme Court." Id. § 2255(f)(3). The defendant argues, and the government concedes, that the Skilling decision applies retroactively, that the statute of limitations for a habeas petition by the defendant began to run on the date of that decision, and that the defendant's motion was thus timely filed within one year of that decision.
Under Teague v. Lane , Supreme Court decisions are generally not retroactive on collateral review. 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). An exception exists, however, if a new rule is substantive, i.e. , "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," id. at 311, 109 S.Ct. 1060 (quotations omitted), or "narrow[s] the scope of a criminal statute by interpreting its terms," Schriro v. Summerlin , 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). The Teague case arose out of a federal habeas petition brought by a state prisoner, and the rationale for that decision rested heavily on concerns of comity and federalism. See generally United States v. Chang Hong , 671 F.3d 1147 (10th Cir. 2011) (). However, the D.C. Circuit has applied the Teague framework in assessing the retroactivity of Supreme Court decisions when determining whether to permit a second or successive federal habeas petition under § 2255(h). In re Fashina , 486 F.3d 1300, 1303 (D.C. Cir. 2007). Accordingly, Teague is most likely the appropriate framework for determining whether a decision is retroactive for the purposes of § 2255(f)(3).
The rule announced in the Skilling decision appears to be a typical substantive rule under the meaning of Teague —it "narrow[ed] the scope of a criminal statute by interpreting its terms," Schriro 542 U.S. at 351, 124 S.Ct. 2519. The Supreme Court has yet to officially opine that Skilling applies retroactively, and the statute of limitations provision in § 2255(f)(3) only resets the limitations period when a right at issue "has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review" (emphasis added). It is not clear whether the Supreme Court must make the retroactivity determination for the purposes of § 2255(f)(3), or whether a district court or circuit court of appeals may do so. See Ryan v. United States , 645 F.3d 913, 915 (7th Cir. 2011) (Easterbrook, J.) (). But since the government has waived a statute of limitations defense in this case, and indeed has continually done so as a matter of practice in post–Skilling cases, the issue may be saved for another day. See id.
Although the government concedes that the defendant's motion is timely brought, the government argues that the defendant has waived his Skilling challenge through procedural default. Normally,...
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