US v. Cook, CR-81-199-D.
| Decision Date | 16 March 1995 |
| Docket Number | No. CR-81-199-D.,CR-81-199-D. |
| Parties | UNITED STATES of America, Plaintiff, v. Kenneth Lee COOK, Defendant. |
| Court | U.S. District Court — Western District of Oklahoma |
Vicki Miles-LaGrange, U.S. Atty. by K. Lynn Anderson, Asst. U.S. Atty., Oklahoma City, OK, for plaintiff.
Mike Norman, Muskogee, OK, for defendant.
Before this Court is the Motion To Vacate, Set Aside, Or Correct Sentence pursuant to § 22551 of Kenneth Lee Cook, Defendant in the above case, filed October 12, 1994. In such Motion, Movant Cook urges that he is entitled to vacation of his conviction and sentence for the reason that conduct to which he pled guilty is no longer criminal. The United States has filed a Response in objection to Cook's Motion To Vacate and such Response has been replied to by Cook.
Kenneth Lee Cook pled guilty on November 13, 1981, to a one-count Information which charged Cook with the crime of conspiracy in violation of 18 U.S.C. § 371. The Information alleged that between 1976 and 1981, Cook, as a county commissioner of Dewey County, Oklahoma, conspired with certain suppliers of road and bridge building and maintenance materials (1) to defraud the United States by impeding and defeating its tax computation and collection functions with regard to Cook's personal income taxes2 and (2) to violate the mail fraud statute, 18 U.S.C. § 1341, by devising a scheme to defraud Dewey County, Oklahoma, and its citizens of the right to have the County's business conducted honestly and to obtain money from Dewey County by means of false and fraudulent pretenses and representations, well knowing at the time that the pretenses and representations were false when made, and to cause the United States mails to be used in furtherance of the scheme.
The conspiracy count charged Cook with two separate criminal violations, in that it accused Cook and his co-conspirators of conspiring to violate the defraud the United States clause of 18 U.S.C. § 371 by impairing and obstructing the tax collection function of the United States regarding the personal income taxes of Cook and also accused Cook and his co-conspirators of devising a scheme to defraud Dewey County, Oklahoma, in violation of the mail fraud statute of the United States, 18 U.S.C. § 1341, and do so in two separate ways: (1) by depriving the county and its citizens of the right to have the county business conducted honestly and impartially and (2) by obtaining money from Dewey County by means of false and fraudulent pretenses and representations, well knowing at the time that the pretenses and representations were false when made, and to cause the United States mails to be used in furtherance of the scheme.
The alleged conspiracy is said to have involved the receipt by Cook of certain kickbacks from the suppliers. Some of the kickbacks consisted of ten-percent of the purchase price of goods purchased by the county and actually delivered and some kickbacks consisted of fifty-percent of the price of materials and supplies ordered by Cook which were paid for by Dewey County but never delivered, termed fifty-fifty split deals. All kickbacks were made to Cook by suppliers.
On August 10, 1982, Movant Cook was sentenced to a term of imprisonment of two years and fined $10,000. Cook paid the fine in full on the day of sentencing and, as previously stated, Cook has been released from prison and completed his parole in 1984.
In 1987, the United States Supreme Court determined in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), that the mail fraud statute, 18 U.S.C. § 1341, should be limited in application to those schemes to defraud which were intended to deprive the victims of the scheme of money or property. The Supreme Court held in that case that the statute did not protect "the intangible right of the citizenry to good government." McNally, 483 U.S. at 356, 107 S.Ct. at 2879. Movant Cook argues that because he pled guilty to conduct which is no longer criminal under McNally, he is entitled to vacation of his sentence and refund of the $10,000 fine. The Government has responded that Cook is not entitled to the relief sought, as an examination of the Information at issue to which Cook pled guilty clearly shows that it charged him with conspiring to defraud the United States and also conspiracy to defraud Dewey County, Oklahoma, and therefore alleged a conspiracy to violate multiple crimes, most of which survived the effect of the McNally decision.
Certain familiar and well-established legal principles are involved in the matter now before the Court. When 28 U.S.C. § 2255 is an inappropriate remedy, a criminal conviction may be attacked by a writ of error coram nobis. Such writ is an extraordinary form of relief which should be granted "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). A charge of criminal conspiracy under 18 U.S.C. § 371 is considered a separate crime from the substantive crime or crimes that the alleged co-conspirators are alleged to have conspired to violate. U.S. v. Davis, 544 F.2d 1056 (10th Cir.1976). A single charge of criminal conspiracy under 18 U.S.C. § 371 can allege multiple statutory offenses that the co-conspirators conspired to violate and a conviction will be upheld so long as there is sufficient evidence to show that the co-conspirators are guilty of any one of the several offenses. United States v. Elam, 678 F.2d 1234, 1250 (5th Cir.1982). Where a conspiracy has multiple objectives, a conviction will be upheld so long as the evidence is sufficient to show that the defendants agreed to accomplish at least one of the objectives. United States v. Alvarez, 735 F.2d 461, 465 (11th Cir.1984). A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989).
A review of the transcript of the hearing conducted on November 13, 1981, at which the Court accepted Cook's plea of guilty, shows that the Court discussed with Cook each individual aspect of the one-count conspiracy charge with which he was charged herein to include the alleged conspiracy to defraud the United States regarding its collection of revenue due on Cook's personal income taxes and the alleged scheme to defraud Dewey County, Oklahoma of money on the fifty-fifty split kickbacks on materials paid for by but never delivered to the county and causing the United States mails to be used in furtherance of the scheme under 18 U.S.C. § 1341. In pertinent part, the discussion was as follows:
In accepting Cook's plea of guilty to each of the offenses charged in the Indictment, the Court relied upon the Defendant's admission of defrauding the United States in its function to collect the Defendant's personal income taxes and Defendant's admission of devising a scheme with suppliers to defraud Dewey County, Oklahoma of money paid for materials he ordered and which the county paid for but which were never delivered to the county, using false pretenses and representations and the United States mails in furtherance of the scheme. The Court did not rely solely on Defendant's further admission that he also devised a scheme with suppliers to defraud Dewey County, Oklahoma and its citizens of the right to have the county's business conducted honestly.
The McNally decision did not involve a charge of defrauding the United States under 18 U.S.C. § 371 but only a scheme to defraud under the federal mail fraud statute, 18 U.S.C. § 1341. While the case condemns the honesty in government part of a mail fraud...
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