United States v. George

Decision Date17 April 2012
Docket NumberNo. 11–1815.,11–1815.
Citation676 F.3d 249
PartiesUNITED STATES of America, Appellee, v. Richard J. GEORGE, Petitioner, Appellant.
CourtU.S. Court of Appeals — First Circuit


Bruce T. Macdonald for appellant.

S. Theodore Merritt, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before BOUDIN, SELYA and STAHL, Circuit Judges.

SELYA, Circuit Judge.

A Hail Mary pass in American football is a long forward pass made in desperation at the end of a game, with only a small chance of success. The writ of error coram nobis is its criminal-law equivalent. This appeal requires us to explore the intricacies of the writ, sift through the considerations that inform a determination to unleash that extraordinary remedy, and assess the extent to which discretion can influence a reviewing court's decision about coram nobis relief. We conclude that a flexible, common-sense approach to coram nobis relief is warranted and that, in the last analysis, we have discretion to withhold the remedy where the interests of justice so dictate. Applying this principle to the case at hand, we affirm the district court's denial of the writ.


From 1975 to 1995, petitioner-appellant Richard George served as a first assistant clerk-magistrate of a Massachusetts state court. In that capacity, he performed an array of administrative tasks central to the court's operation, including the issuance of search warrants.

In December of 1995, the government filed a one-count information charging the petitioner with participation in a conspiracy to commit honest-services wire fraud. See 18 U.S.C. §§ 371, 1343, 1346. The information averred that the petitioner had conspired to “participate in a scheme to defraud the Commonwealth of Massachusetts of the intangible right of [his] honest services ..., and to cause the use of wire communications in execution of this scheme.” In support, the information stated that the petitioner surreptitiously delivered blank search warrants to one Michael Fosher, knowing that Fosher had no legitimate use for them. Wire fraud came into play because Fosher had made at least one interstate telephone call to the petitioner in furtherance of the scheme.

The petitioner waived indictment, and the parties immediately entered into a binding C-type plea agreement. See Fed.R.Crim.P. 11(c)(1)(C). The agreement contemplated that the petitioner would plead guilty to the information and that his sentence would entail twenty months of imprisonment, a $10,000 fine, the standard $50 special assessment, and two years of supervised release.

The recitals contained in the plea agreement and presentence investigation report shed further light on the underlying events. Those recitals made pellucid that Fosher and several confederates had used the improperly obtained search warrants to mount a series of robberies. For example, they would pose as law enforcement officers executing a warrant, enter a drug dealer's home, and abscond with his drugs and money. By the time that the petitioner signed the plea agreement, nearly all of the other miscreants involved in the scheme had pleaded guilty to federal charges.

The district court accepted the plea and sentenced the petitioner in accordance with the plea agreement. The petitioner did not appeal, nor did he at any time seek habeas relief. See 28 U.S.C. § 2255. Rather, he served his incarcerative term, paid the fine and special assessment, and completed two years of supervised release on April 23, 1999.

The petitioner retired from state service prior to the entry of his guilty plea, and on October 1, 1995, he began receiving a monthly retirement stipend of $1,424.91, together with lifetime health-care coverage. Those benefits continued throughout his immurement and beyond. But in January of 2003, the state retirement board (the Board) suspended his retirement benefits due to his federal conviction. This decision was especially disconcerting to the petitioner because the anticipated flow of retirement benefits had been part and parcel of his plea bargain strategy; his attorney had advised him that he would remain eligible for his vested retirement benefits as long as he started receiving them before he entered a guilty plea.

On October 29, 2004, the petitioner filed his first petition for a writ of error coram nobis. He argued that his conviction suffered from a fundamental defect in that the government had failed to allege facts establishing all the elements of the offense of conviction. The district court denied the petition, finding no fundamental defect in the conviction. United States v. George, 436 F.Supp.2d 274, 277–79 (D.Mass.2006). On May 11, 2007, we summarily affirmed that ruling. See United States v. George, No. 06–2010 (1st Cir. May 11, 2007) (unpublished). Shortly thereafter, the Board permanently revoked the petitioner's pension and authorized the institution of proceedings to recoup benefits paid in excess of the petitioner's aggregate contributions to the retirement system.1

In 2010, the Supreme Court truncated the reach of the statute proscribing honest-services fraud. See Skilling v. United States, ––– U.S. ––––, 130 S.Ct. 2896, 2928–34, 177 L.Ed.2d 619 (2010). The Court held that the “intangible right of honest services,” set out in 18 U.S.C. § 1346, would be unconstitutionally vague unless it was limited to schemes to defraud that involve bribes or kickbacks. Id. at 2933–34. Because the government had failed to show that Skilling had engaged in conduct involving bribery or kickbacks, the Court determined that he “did not commit honest-services fraud.” Id. at 2934.

As said, the petitioner had pleaded guilty to an information that charged conspiracy to commit honest-services wire fraud. The information did not contain any mention of bribes or kickbacks. The petitioner seized on the Skilling decision and filed his second petition for a writ of error coram nobis. In this petition, he insisted that, under Skilling, there was a fundamental error in his conviction.

The district court denied the petition. United States v. George, 824 F.Supp.2d 217, 221, No. 95–10355, 2011 WL 2632321, at *4 (D.Mass. June 30, 2011). It analyzed the petitioner's claim through the prism of a tripartite test requiring a petitioner to “1) explain h[is] failure to seek relief from judgment earlier, 2) demonstrate continuing collateral consequences from the conviction, and 3) prove that the error is fundamental to the validity of the judgment.” United States v. Sawyer, 239 F.3d 31, 38 (1st Cir.2001). The court found the timeliness requirement satisfied and agreed with the petitioner that, in light of Skilling, a fundamental error had occurred. See George, 824 F.Supp.2d at 819–20, 2011 WL 2632321, at *2. Nevertheless, the court determined that the cessation of the petitioner's retirement benefits did not constitute a continuing collateral consequence sufficient to justify the extraordinary remedy sought. Id. at 220, 2011 WL 2632321 at *3 (citing United States v. Craig, 907 F.2d 653, 660 (7th Cir.1990)). Consequently, it denied coram nobis relief. This timely appeal followed.


This appeal requires us to revisit the tripartite test that we have used in the past for coram nobis cases. We start by explicating the applicable law and then proceed to the merits.

A. The Legal Landscape.

The writ of error coram nobis is of ancient lineage, tracing its roots to sixteenth century English common law. See Sawyer, 239 F.3d at 37. Its original purpose was to promote respect for the judicial process by enabling a court to correct technical errors in a final judgment previously rendered. See United States v. Denedo, 556 U.S. 904, 129 S.Ct. 2213, 2220, 173 L.Ed.2d 1235 (2009). In the United States, the office of the writ has expanded well beyond the reopening of a final judgment to correct technical errors. See id. In federal criminal cases, the writ is now available as a remedy of last resort for the correction of fundamental errors of fact or law. Trenkler v. United States, 536 F.3d 85, 93 (1st Cir.2008).

The authority to grant coram nobis relief derives from the All Writs Act, 28 U.S.C. § 1651(a), which empowers federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” There is a generally accepted understanding that the All Writs Act imbues courts with flexible, see Sprint Spectrum L.P. v. Mills, 283 F.3d 404, 413 (2d Cir.2002), inherently equitable, see Clinton v. Goldsmith, 526 U.S. 529, 537, 119 S.Ct. 1538, 143 L.Ed.2d 720 (1999), powers. These powers are anchored in informed judicial discretion. See Roche v. Evap'd Milk Ass'n, 319 U.S. 21, 25–26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943); In re Cargill, Inc., 66 F.3d 1256, 1260 (1st Cir.1995); Paramount Film Distrib. Corp. v. Civic Ctr. Theatre, Inc., 333 F.2d 358, 360 (10th Cir.1964). An emphasis on restraint is ingrained: the extraordinary nature of the writs implies that they should be issued sparingly. See In re Cargill, 66 F.3d at 1259; In re Sch. Asbestos Litig., 977 F.2d 764, 772 (3d Cir.1992).

The metes and bounds of the writ of coram nobis are poorly defined and the Supreme Court has not developed an easily readable roadmap for its issuance. See Denedo, 129 S.Ct. at 2220. But the Court has indicated that caution is advisable and that [c]ontinuation of litigation after final judgment ... 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, 98 L.Ed. 248 (1954). This emphasis on the interests of justice is entirely consistent with the provenance and usage of extraordinary writs generally. See, e.g., Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997); Burr & Forman v. Blair, 470 F.3d 1019, 1026 (11th Cir.2006); ...

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