US v. Gorny
| Decision Date | 25 November 1987 |
| Docket Number | No. 82 CR 389.,82 CR 389. |
| Citation | 674 F. Supp. 263 |
| Parties | UNITED STATES of America, Plaintiff, v. Stephen T. GORNY, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Brandley Lerman, Asst. U.S. Atty., Chicago, Ill., for plaintiff.
Patrick Tuite, Chicago, Ill., for defendant.
Defendant Stephen T. Gorny moves for a writ of error coram nobis to vacate his convictions in No. 82 CR 389. A jury returned verdicts that found him guilty of mail fraud, racketeering, and obstruction of a criminal investigation. He supports his motion with a memorandum that refers to facts in the record and to case law which he contends is dispositive. The government opposes the motion, arguing that Gorny misconstrues the facts of his case and the case law on which he relies.
The court has given careful consideration to defendant's motion and the government's objections. It has reviewed the record which consists of a superseding indictment, transcripts containing the opening statements of counsel, the evidence heard by the jury, the closing arguments, jury instructions, pretrial and post-trial proceedings. From this consideration and review, the court concludes that defendant's motion must be granted. Therefore, it vacates his convictions and orders his record expunged. The reasons for these rulings are as follows.
Defendant was tried by a jury and found guilty of ten counts of mail fraud, one count of racketeering, and one count of obstruction of a criminal investigation. Each mail fraud count charged that "Stephen T. Gorny ... devised and intended to devise and participated in a scheme to defraud":
The theory of the government's mail fraud charges, as expressed in the opening statement and closing arguments of government counsel, the evidence, and the instructions to the jury, was that defendant had devised and participated in a scheme to defraud the Board of Appeals and the citizens of Cook County of their right to have their business and affairs conducted honestly, impartially, and free from fraud. After hearing and denying post-trial motions, this court sentenced defendant; he appealed, and the court of appeals affirmed his convictions. 732 F.2d 597. He has served his sentence and been discharged from these proceedings. The clerk of this court has treated this record as one of a closed case. This would have remained its status except for a recent development in the law of federal crimes, particularly the law of mail fraud.
___ U.S. at ___, 107 S.Ct. at 2880, 2881. It ruled that the mail fraud statute does not prohibit schemes to defraud citizens of their intangible rights to honest and impartial government. ___ U.S. at ___, 107 S.Ct. at 2882. This ruling revealed to defendant, and to many others, that the acts for which he was indicted, arrested, prosecuted, convicted and sentenced, were not crimes of mail fraud, McNally, supra at 2882.
Defendant's motion for a writ of error coram nobis to vacate his convictions in 82 CR 389 is based on McNally. He argues that the mail fraud convictions should be set aside because they were for acts which, under the doctrine of that case, are not within the mail fraud statute. He insists that here, as in McNally, his convictions were based on an alleged scheme to defraud a board and the citizens of a county of their right to honest and impartial government. Defendant points to the fact that a near unanimous Supreme Court has held that Congress, from inception of the mail fraud statute, intended that law to apply only to those instances involving transgressions against money or property. It follows, according to defendant, that because it was not unnecessary for the jury to have found that the scheme with which he was charged resulted in either the Board of Appeals or the citizens of Cook County being deprived of money or property, his mail fraud convictions were invalid. Therefore, he asks that these convictions, as well as the ones for racketeering and obstruction, be vacated.
The government opposes defendant's motion, arguing that the mail fraud convictions are proper even in light of McNally. It contends that deprivation of a public employer's right of control of its agents as recognized by state law constitutes a deprivation of something of value, a right of control to which the public employer is legitimately entitled and hence an infringement of property within the scope of the mail fraud statute. Thus the proper question, after McNally, is not whether the right is tangible, but rather, whether it is a property right of which one can be defrauded. Accordingly, the government argues that the rights of which the Board and the citizens of Cook County were deprived are not merely abstract but are property interests recognized by the law of agency.
The factual and legal theories of these arguments, being ingenious and original, are stated by the government for the first time in these post-conviction proceedings. They were not charged in the indictment; they are not reflected in the opening statement or closing arguments of government counsel; they were not supported by evidence offered as such; nor was the jury given any instruction consistent with them. For these reasons this court is constrained to agree with defendant that the government now charges conduct, said to have been criminal, but which was not so described in the prosecution of the case against him.
It is well established that "to uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process." Dunn v. United States, 442 U.S. 100, 106, 99 S.Ct. 2190, 2194, 60 L.Ed.2d 743 (1979); see Eaton v. Tulsa, 415 U.S. 697, 699, 94 S.Ct. 1228, 1230, 39 L.Ed. 2d 693 (1974) (per curiam); Garner v. Louisiana, 368 U.S. 157, 163-64, 82 S.Ct. 248, 251-52, 7 L.Ed.2d 207 (1961). Therefore, when a criminal conviction is sought to be upheld, due process of law requires that the theory for upholding it be set forth in both the indictment and the case presented to the jury. Dunn, 442 U.S. at 106, 99 S.Ct. at 2194. This is because "in addition to notice, due process requires a trial in which criminal defendants are able to confront the government's case." Cola v. Reardon, 787 F.2d 681, 696 (1st Cir.1986).
Here, in the prosecution of defendant, the government's case was that he had devised and intended to devise a scheme to defraud the Board of Appeals and the citizens of Cook County of their intangible rights to clean and honest government. It was not charged in the indictment nor stated in the case presented to the jury, that he had devised a scheme to defraud his public employer of its right to control him as an agent, a right recognized by state law and constituting a property interest within the scope of the mail fraud statute. If this court were to sustain the argument the government now makes in this case, its ruling would be offensive to the most basic notions of due process. "Few constitutional principles are more firmly established than a defendant's right to be heard on the specific charges of which he is accused." Dunn v. United States, 442 U.S. 100, 106, 99 S.Ct. 2190, 2194, 60 L.Ed.2d 743 (1979). The government's arguments and the theory they reflect cannot be sustained. Defendant's conduct as charged in the indictment and presented to the jury was not a crime under the mail fraud statute. McNally v. United States, ___ U.S. ___, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). Consequently, his motion for a writ of error coram nobis to vacate the convictions on ten counts of mail fraud must be granted, United States v. Travers, 514 F.2d 1171, 1178 (2d Cir.1974); cf. Ingber v. Enzor, 664 F.Supp. 814, 823 (S.D.N.Y.1987). This leaves the issues concerning the convictions for racketeering and obstruction of a criminal investigation.
The count that charged racketeering alleged facts concerning the enterprise in which defendant was associated and then stated that he engaged in a pattern of racketeering activity consisting of multiple acts of mail fraud and multiple acts of bribery in violation of Illinois law. One of the elements which the government had to prove to the jury was that defendant participated in the conduct of the enterprise's affairs through the pattern of racketeering activity alleged in the indictment. United States v. Sinito, 723 F.2d 1250, 1260 (6th Cir.1983). However, the pattern of racketeering activity which the government charged in the indictment, and presented to the jury, consisted of acts which, under McNally v. United States, ___ U.S. ___, 107 S.Ct. 2875, 2882, 97 L.Ed.2d 292 (1987), were not crimes under the mail fraud statute....
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