United States v. Christensen

• Decision Date: 19 January 2021
• Docket Number: No. CR-14-08164-PCT-DGC,No. CV-20-08152-PCT-DGC (DMF),CR-14-08164-PCT-DGC,CV-20-08152-PCT-DGC (DMF)
• Parties: United States of America, Plaintiff/Respondent, v. Gary Stevens Christensen, Defendant/Petitioner
• Court: U.S. District Court — District of Arizona

United States of America, Plaintiff/Respondent, v. Gary Stevens Christensen, Defendant/Petitioner

No. CR-14-08164-PCT-DGC

No. CV-20-08152-PCT-DGC (DMF)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

January 19, 2021

No. CV-18-08235-PCT-DGC (DMF) (Related Case)

ORDER

Petitioner Gary Christensen was convicted of multiple tax-related offenses. See Case No. CR-14-08164. He has filed a petition for writ of error coram nobis challenging the restitution order entered in the criminal case. CR Doc. 244; see CV Doc. 1.¹ The issues are fully briefed (CV Docs. 17, 24, 28), and oral argument will not aid the Court's decision, see Fed. R. Civ. P. 78(b); LRCiv 7.2(f). For reasons stated below, the Court will grant the petition in part and deny it in part.

I. Background.

In September 2014, a grand jury indicted Christensen on multiple counts of tax evasion, filing false tax returns, and failure to file tax returns for the 2004-2010 tax years.CR Doc. 1; see 26 U.S.C. §§ 7201, 7203, 7206. Christensen declined the government's plea offers and went to trial in May 2016. The jury acquitted Christensen on the false tax return charges (counts eight through twelve), but found him guilty on each count of tax evasion (counts one through seven) and failure to file a tax return (counts thirteen and fourteen). CR Docs. 95, 101. He was sentenced to 42 months in prison followed by 3 years of supervised release. CR Docs. 140, 146, 231. He also was ordered to pay $1,603,533 in restitution to the Internal Revenue Service ("IRS"). Id. The Ninth Circuit affirmed the conviction and sentence. CR Doc. 166; United States v. Christensen, 705 F. App'x 599 (9th Cir. 2017).

Christensen moved to vacate his conviction under 28 U.S.C. § 2255 in September 2018, asserting claims of ineffective assistance of counsel. Case No. CV-18-08235, Doc. 1. The Court accepted Judge Fine's recommendation that the motion be denied. Id., Docs. 18, 24. Christensen attempted to appeal the ruling, but the Ninth Circuit denied his request for a certificate of appealability. Id., Docs. 29, 32; see United States v. Christensen, No. 20-16072, 2020 WL 7048609 (9th Cir. Nov. 20, 2020).²

Christensen completed his prison sentence and started supervised release in December 2019. See Federal BOP, Find an inmate, https://www.bop.gov/inmateloc/ (last visited Jan. 13, 2021). Shortly thereafter, the government sought to collect restitution. Pursuant to the Federal Debt Collection Procedures Act, 28 U.S.C. § 3205, multiple writs of garnishment against Christensen's property were issued in February and May 2020. CR Docs. 181-92, 237. Each garnishee filed an answer identifying property belonging to Christensen in its custody, possession, or control. CR Docs. 215-27, 241. The Court granted the government's motions for disposition orders on certain garnishments. CR Docs. 245-52, 254, 265.³

Christensen filed the present petition for writ of error coram nobis in June 2020, arguing that the Court's restitution order must be vacated as unlawful. CR Doc. 244; CV Docs. 1, 17 (supplement). The government filed a response, and Christensen replied. CV Docs. 24, 28. The petition was referred to Judge Fine for a report and recommendation, but the Court elected to withdraw the referral in order to resolve this matter more quickly in light of the government's ongoing collection efforts. See CV Docs. 21, 29.

II. Legal Standard for a Writ of Error Coram Nobis.

The term "coram nobis" is Latin for "in our presence" or "before us." See Nowlin v. United States, 81 F. Supp. 3d 514, 519 (N.D. Miss. 2015) (citing Black's Law Dictionary, at 304-05 (5th ed. 1979)). At common law, a coram nobis writ was used by "a court to vacate its own judgments 'for errors of fact in those cases where the errors are of the most fundamental character, that is, such as rendered the proceeding itself invalid.'" Flores v. Washington, No. 2:18-CV-00177-SAB, 2018 WL 10509378, at *1 (E.D. Wash. Sept. 18, 2018) (quoting United States v. Mayer, 235 U.S. 55, 69 (1914)); see Raven v. Oklahoma, No. CIV-16-289-D, 2016 WL 3950959, at *2 (W.D. Okla. June 14, 2016) ("Under the common law, 'the common law scope of coram nobis was a writ from the judgment-issuing court to itself, granting itself power to reopen that judgment.") (quoting Rawlins v. Kansas, 714 F.3d 1189, 1196 (10th Cir. 2013)).

In 1946, amendments to Federal Rule of Civil Procedure 60 expressly abolished writs of coram nobis. Fed. R. Civ. P. 60(e); see Flores, 2018 WL 10509378, at *1. Several years later, however, the United States Supreme Court "held that district courts have the power to issue the writ under the All Writs Act, 28 U.S.C. § 1651(a)."⁴ Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002) (citing United States v. Morgan, 346 U.S. 502, 506-07 (1954)); see United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir. 1989) (same); United States v. Mischler, 787 F.2d 240, 241 n.1 (7th Cir. 1986) ("[The] writ of error coram nobis is authorized by 28 U.S.C. § 1651 (1981) - the all writs provision of theJudicial Code. While the writ was abolished in 1946 by the amendment of Fed.R.Civ.P. 60(b), it retains its vitality in criminal proceedings.") (citing Morgan); Flores, 2018 WL 10509378, at *1 (Morgan held that the abolition under Rule 60 "applied only to civil writs and that district courts retained authority to issue writs of coram nobis in collateral criminal proceedings"); United States v. Stine, No. CR 99-00155-PCT-JJT, 2018 WL 6030977, at *2 (D. Ariz. May 22, 2018) ("A writ of Coram Nobis . . . authorizes a court to vacate its judgment where errors are of the most fundamental character.") (citing Morgan).

The Supreme Court has observed that "the All Writs Act is 'a residual source of authority to issue writs that are not otherwise covered by statute,' and that, 'it is difficult to conceive of a situation in a federal criminal case today where the writ would be necessary or appropriate.'" Stine, 2018 WL 6030977, at *2 (quoting Carlisle v. United States, 517 U.S. 416, 429 (1996)). Indeed, both the Supreme Court and the Ninth Circuit "have long made clear that the writ of error coram nobis is a highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable." United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007) (citing Morgan, 346 U.S. at 511)); see also Matus-Leva, 287 F.3d at 760 ("Coram nobis is an extraordinary writ, used only to review errors of the most fundamental character."); Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987) (describing the writ as "extraordinary").

"In Hirabayashi, consistent with the extraordinary nature of coram nobis relief, [the Ninth Circuit] adopted the following framework for deciding when the writ should be issued:

A petitioner must show the following to qualify for coram nobis relief: (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."

Riedl, 496 F.3d at 1006 (quoting Hirabayashi, 828 F.2d at 604, and noting that the Ninth Circuit has "repeatedly reaffirmed this framework") (citations omitted). "Because theserequirements are conjunctive, failure to meet any one of them is fatal." Matus-Leva, 287 F.3d at 760 (citing United States v. McClelland, 941 F.2d 999, 1002 (9th Cir. 1991)).

III. Christensen's Coram Nobis Petition.

Christensen contends that the restitution order is unlawful and coram nobis relief is warranted because: (1) the government's collection of a civil tax that has not been assessed violates the separation of powers under the United States Constitution; (2) tax collection in the guise of restitution must comply with the Internal Revenue Code; (3) the government did not prove at trial the actual amount of tax owed for the charged years; (4) the restitution order must be assessed as a civil tax under 26 U.S.C. § 6201(a)(4) and then collected by the IRS, not the Department of Justice; (5) more than $1 million of the restitution amount consists of back taxes for years not covered by the convictions; and (6) Christensen was ordered to pay restitution while incarcerated. CV Doc. 1 at 1-2. The government argues that the restitution order is entirely legal and that Christensen has failed to meet the rigorous test for coram nobis relief. CV Doc. 24. The Court will address Christensen's arguments using Hirabayashi's four-part test for coram nobis relief.

A. A More Usual Remedy Is Not Available.

Because a § 2255 motion cannot be used to challenge restitution, the government agrees that the first prong of the Hirabayashi test is satisfied - a more usual remedy is not available. CV Doc. 24 at 9 & n.2 (citing Kramer, 195 F.3d at 1130); see United States v. Thiele, 314 F.3d 399, 401 (9th Cir. 2002) ("We agree with the district court that Kramer controls and that Thiele cannot collaterally attack his restitution order in a § 2255 motion.").⁵

B. Valid Reasons Exist for Not Attacking the Restitution Order Earlier.

"A coram nobis petition is not subject to a specific limitations period." United States v. Kroytor, 977 F.3d 957, 961 (9th Cir. 2020) (citing United States v. Kwan, 407F.3d 1005, 1012 (9th Cir. 2005)). "[C]ourts have denied relief for unjustified delay where 'the petitioner has delayed for no reason whatsoever, where the respondent demonstrates prejudice, or where the petitioner appears to be abusing the writ.'" Id. (quoting Kwan, 407 F.3d at 1013); see also Telink, 24 F.3d at 47 ("In concluding that the coram nobis petition will not be subject to an arbitrary limitations period, we instead adopt a 'flexible, equitable time limitation' based on laches. A district court is free at any time to apply laches to a coram nobis petition, if the petitioner inexcusably delays in asserting his claims and...