US v. Hansen, Crim. A. No. 83-00075 (JHG).

• Decision Date: 05 December 1995
• Docket Number: Crim. A. No. 83-00075 (JHG).
• Citation: 906 F. Supp. 688
• Parties: UNITED STATES of America v. George Vernon HANSEN, Defendant.
• Court: U.S. District Court — District of Columbia

906 F. Supp. 688

UNITED STATES of America v. George Vernon HANSEN, Defendant.

Crim. A. No. 83-00075 (JHG).

United States District Court, District of Columbia.

December 5, 1995.

COPYRIGHT MATERIAL OMITTED

Lee J. Radek, Chief, Susan J. Park and Miles F. Ehrlich, Trial Attorneys, Public Integrity Section, Criminal Division, U.S. Dept. of Justice, Washington, DC, for United States.

Nathan Lewin, Stephen L. Braga, Miller, Cassidy, Larroca & Lewin, Washington, DC, for Mr. Hansen.

MEMORANDUM OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

The petitioner moves this Court, pursuant to the federal habeas corpus statute, 28 U.S.C. § 2255, or, in the alternative, under a writ of error coram nobis, to set aside his 1984 conviction under the False Statements Act, 18 U.S.C. § 1001. Although the petitioner has served the sentence imposed by this Court, he is currently in custody serving a sentence imposed in 1993 by another federal court stemming from a 1992 conviction for 45 counts of bank fraud. The 1993 sentence was enhanced under the Sentencing Guidelines by his 1984 conviction in this Court.

For the reasons explained below, the Court will grant the writ of error coram nobis: the 1984 conviction and sentence will be vacated. The Court will also grant the request for repayment of the fines aggregating $40,000. However, the Court will deny the petitioner's request to amend his 1993 sentence and his request for the payment of interest. The requested relief under 28 U.S.C. § 2255 to amend the 1992 conviction must be presented to the federal court that imposed the 1993 sentence.

I. Background

The petitioner, George Vernon Hansen, represented the Second Congressional District of Idaho between 1965 and 1969 and from 1975 until the election following his 1984 conviction. Because of his omissions in financial disclosure statements filed under the Ethics in Government Act of 1978 ("EIGA"), Pub.L. No. 95-521, 92 Stat. 1824 (Oct. 26, 1978) (codified as amended in scattered sections of Titles 2, 5, 18, 26 and 28 U.S.C.), the petitioner was convicted by jury of making false statements in matters within the jurisdiction of a department or agency of the United States in violation of 18 U.S.C. § 1001. Specifically, the petitioner was convicted of failing to disclose on his EIGA forms a $50,000 bank loan to his spouse for reporting year 1978, a loan which was cosigned by silver trader Nelson Bunker Hunt; a $84,475 silver commodities profit for 1979; a loan in excess of $61,000 from Nelson Bunker Hunt for 1980; and $135,000 in loans from private individuals for 1981.

Prior to his conviction, the petitioner challenged the applicability of 18 U.S.C. § 1001 to the omissions on his EIGA forms, but this Court denied his motion to dismiss. United States v. Hansen, 566 F.Supp. 162, 163 (D.D.C.1983).¹ At the time, the law clearly established that 18 U.S.C. § 1001 embraced false statements made to the House of Representatives. United States v. Bramblett, 348 U.S. 503, 509, 75 S.Ct. 504, 508, 99 L.Ed. 594 (1955), overruled by Hubbard v. United States, ___ U.S. ___, 115 S.Ct. 1754, 131 L.Ed.2d 779 (1995); see also United States v. Diggs, 613 F.2d 988, 999 (D.C.Cir.1979), cert. denied, 446 U.S. 982, 100 S.Ct. 2961, 64 L.Ed.2d 838 (1980). On appeal, the U.S. Court of Appeals for the District of Columbia Circuit upheld the petitioner's 1984 conviction on all counts. United States v. Hansen, 772 F.2d 940, 943 (D.C.Cir.1985) (Scalia, J.) (The "sweeping language of 18 U.S.C. § 1001 clearly embraces the omissions on Hansen's EIGA forms." (internal quotations and citations omitted)). The Court of Appeals' decision was based on its understanding of Bramblett and of how Bramblett applied to the petitioner's EIGA omissions: "The House Committee with which the forms were filed is a `department' for purposes of § 1001, since that term was `meant to describe the executive, legislative and judicial branches of the Government.'" Id. The Supreme Court denied the petition for a writ of certiorari, Hansen v. United States, 475 U.S. 1045, 106 S.Ct. 1262, 89 L.Ed.2d 571 (1986), and the petitioner's motions for a new trial and other relief were later denied by this Court. As a result of his conviction, the petitioner served twelve months in a federal prison and paid a fine of $10,000 on each of the four counts, aggregating $40,000.

On March 12, 1992, the petitioner was indicted and later convicted on 45 counts of bank fraud at a jury trial in the United States District Court for the District of Idaho. See Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255, or, in the Alternative, Petition for a Writ of Error Coram Nobis ("Petitioner's Motion"), at 3. On March 19, 1993, the petitioner was sentenced by Judge Edward J. Lodge, United States District Court for the District of Idaho, to 48 months imprisonment pursuant to the Sentencing Guidelines, which included his 1984 conviction in the sentencing calculus. Id. The petitioner remains in federal custody. Id.

On May 15, 1995, the Supreme Court of the United States overruled United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955). Hubbard v. United States, ___ U.S. ___, ___, ___, 115 S.Ct. 1754, 1758, 1765, 131 L.Ed.2d 779 (1995). In Bramblett, which involved false statements made to Congress, the Court had applied section 1001 broadly, making it applicable to false statements made to all three branches of the government. In Hubbard, the Supreme Court dramatically limited the reach of 18 U.S.C. § 1001. The petitioner cites Hubbard as the basis for the relief he requests from this Court. See Petitioner's Motion, at 3.

As relief, the petitioner moves this Court to vacate his 1984 conviction and sentence; to order a refund of the fine that he paid aggregating $40,000, with interest; and to order that the term of his imprisonment be credited to the sentence that he is currently serving as a result of his 1992 conviction for bank fraud in the United States District Court for the District of Idaho.

II. Discussion

The petitioner has requested relief under the federal habeas corpus statute, 28 U.S.C. § 2255, or, in the alternative, under a writ of error coram nobis. This Court has no jurisdiction to provide the habeas relief requested under 28 U.S.C. § 2255. Because a prisoner may only challenge the sentence for which the prisoner is "in custody" at the time of the habeas challenge, the request for relief on this basis will be denied. Maleng v. Cook, 490 U.S. 488, 492-93, 109 S.Ct. 1923, 1926, 104 L.Ed.2d 540 (1989); Clifton v. United States, 371 F.2d 354, 355 n. 2 (D.C.Cir.1966), cert. denied, 386 U.S. 995, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967). However, this Court has jurisdiction under the All Writs Act, 28 U.S.C. § 1651(a), to consider a petition for a writ of error coram nobis. United States v. Morgan, 346 U.S. 502, 506, 74 S.Ct. 247, 250, 98 L.Ed. 248 (1954); United States v. Ayala, 894 F.2d 425, 427-28 (D.C.Cir.1990).

The writ of error coram nobis arises from the common law and is an equitable tool for federal courts to "fill the interstices of the federal post-conviction remedial framework." Ayala, 894 F.2d at 428. Through a writ of error coram nobis, the federal judge who imposed a sentence has the discretionary power to set aside an underlying conviction and sentence which, for a valid reason, should never have been entered. Relief must be sought in the court in which the sentence was imposed. Morgan, 346 U.S. at 507 n. 9, 74 S.Ct. at 250 n. 9. Unlike the "in custody" limitation of the habeas statute, a petitioner may collaterally attack a federal conviction under this common law writ even though the petitioner is no longer serving a sentence pursuant to that conviction. Id. at 506-10, 74 S.Ct. at 249-52; United States v. Drobny, 955 F.2d 990, 996 (5th Cir.1992); Ayala, 894 F.2d at 427-28. See generally 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2867, at 394-95 (1995). The federal courts have broad equitable powers to order relief under a writ of error coram nobis, but relief should only be granted under "circumstances compelling such action to achieve justice," Morgan, 346 U.S. at 511, 74 S.Ct. at 252, and where other statutory remedies are not available. Id.

Whether to grant relief under a writ of error coram nobis is a decision committed to the discretion of the Court; federal judges may exercise their discretion by granting relief to correct serious defects underlying the conviction or sentence if those defects were not correctable on appeal or where exceptional circumstances otherwise justify such relief. United States v. McCord, 509 F.2d 334, 341 (D.C.Cir.1974), cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975); see Laughlin v. United States, 474 F.2d 444, 451 (D.C.Cir.1972), cert. denied, 412 U.S. 941, 93 S.Ct. 2784, 37 L.Ed.2d 402 (1973) (in the D.C. Circuit, habeas corpus standards generally apply in reviewing writs of error coram nobis). Cf. Drobny, 955 F.2d at 996 (in the 5th Circuit, standard of review for a petition of writ of error coram nobis is more strict than that applicable to habeas corpus).

Some circuits have relied upon a four-part analysis to assist the courts in applying their discretion: relief is appropriate where "(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." Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987); see also Klein v. United States, 880 F.2d 250, 254 (10th Cir.1989); United States v. Osser, 864 F.2d 1056, 1059-60 (3rd Cir. 1988); United States v. Mandel, 862 F.2d 1067, 1077 (4th Cir.1988), cert. denied, 491 U.S. 906, 109 S.Ct. 3190, 105 L.Ed.2d 699 (1989). Finding this analysis to be both helpful and consistent with...