US v. Loftus, CR 83-00186.
Citation | 796 F. Supp. 815 |
Decision Date | 13 May 1992 |
Docket Number | No. CR 83-00186.,CR 83-00186. |
Parties | UNITED STATES of America, Respondent, v. Robert A. LOFTUS, Petitioner. |
Court | United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania |
Albert R. Murray, Jr., Asst. U.S. Atty., Lorna Graham, Scranton, Pa., for U.S.
Charles Gelso, Wilkes-Barre, Pa., for Robert A. Loftus.
Indictment (filed November 1, 1983). An examination of the indictment demonstrated that it was not susceptible to a finding that an economic harm would result from Loftus' conduct. See United States v. Asher, 854 F.2d 1483, 1494 (3d Cir.1988) (). Therefore, by Memorandum and Order dated January 9, 1992, this court determined that McNally rendered Loftus' conviction invalid inasmuch as "errors which result in a person's charge and conviction for something not a crime are fundamental," United States v. Stoneman, 870 F.2d 102, 105 (3d Cir.1989), and that, under the circumstances then existing, the petitioner's failure to appeal from his 1983 judgment of conviction for mail fraud did not bar coram nobis relief. However, notwithstanding the determination that Loftus' conviction was invalid, in order to obtain complete relief under existing law, the petitioner must establish that he continues to suffer collateral consequences as a result of the conviction. Accordingly, a final decision on the petition was held in abeyance pending supplemental submissions on this issue.
Loftus filed three supplemental submissions. He enumerates several consequences attached to his mail fraud conviction, viz., that he suffers under the stigma of a felony fraud conviction; that he paid a $10,000 fine; that he is ineligible for a position in city government; that he cannot possess a firearm; that he will be subjected to an enhanced sentence if convicted of another offense; that he can be impeached as a witness in a criminal or civil trial; that he cannot serve as a director or officer of a federally insured bank; and, that he cannot obtain licenses to engage in his former occupation as an insurance agent and broker. In an affidavit accompanying his first supplemental brief, Loftus declares, in pertinent part:
The petitioner points out that there is a dispute among the circuits with respect to what constitutes collateral consequences sufficient to warrant coram nobis relief and that the Third Circuit has not directly addressed this issue. The Ninth Circuit, in essence, presumes that "collateral consequences flow from any criminal conviction," Hirabayashi v. United States, 828 F.2d 591, 606 (9th Cir.1987) (citation omitted), while the Seventh Circuit "rejects coram nobis petitions except where there is a concrete threat that an erroneous conviction's lingering disabilities will cause serious harm to the petitioner." United States v. Craig, 907 F.2d 653, 658 (7th Cir.1990). Loftus urges the court to adopt the less exacting approach of the Ninth Circuit. In the alternative, he maintains that the revocation of his licenses as a broker and an agent satisfy the stringent requirements of the Seventh Circuit.2
In response, the Government argues that the approach of the Seventh Circuit is the law in the Third Circuit. Applying the Seventh Circuit's criteria, the Government argues that coram nobis relief is unjustified. With respect to Loftus' assertion that he is ineligible for a position in city government and that he cannot serve as a director or officer of a federally insured bank, the Government maintains that, inasmuch as he is not interested in seeking such positions,3 these factors are insufficient to satisfy the continuing consequences requirement. For a similar reason, the Government contends that the fact that he cannot possess a firearm fails to qualify as a collateral consequence since he does not allege either a desire or a need to possess a firearm. With regard to the petitioner's contentions that he will be subjected to an enhanced sentence if convicted of another offense and that he can be impeached as a witness in a criminal or civil trial, the Government asserts that such factors are speculative and that reliance thereon would undermine the civil disability requirement. Addressing Loftus' claim that he cannot obtain licenses as an insurance agent and broker, the Government advances the position that under the relevant Pennsylvania regulations, his 1983 conviction would not bar him from acquiring these licenses. Further, the Government notes that he has not reapplied for these licenses.
The Government responds that the facts underlying Loftus' conviction will always exist and that granting coram nobis relief does not assure Loftus of becoming a director or obtaining his insurance licenses. The pleadings have been closed, and the petition is ripe for disposition. For the reasons that follow, the petition will be granted.
In the aftermath of McNally, the writ of coram nobis has attained newfound importance.6 As the Seventh Circuit Court of Appeals observed, however, ...
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