US v. Mandel
| Decision Date | 12 November 1987 |
| Docket Number | Criminal No. S 75-0822. |
| Citation | 672 F. Supp. 864 |
| Parties | UNITED STATES of America v. Marvin MANDEL, W. Dale Hess, Harry W. Rodgers, III, William A. Rodgers, Irvin Kovens, and Ernest N. Cory. |
| Court | U.S. District Court — District of Maryland |
Breckinridge L. Willcox, U.S. Atty., Martin S. Himeles, Asst. U.S. Atty., Baltimore, Md., for plaintiff U.S.
Arnold M. Weiner, M. Albert Figinski, Stuart R. Berger, Melnicove, Kaufman, Weiner, Smouse & Garbis, Baltimore, Md., for defendant Mandel.
William G. Hundley, Larry S. Gondelman, Akin, Gump, Strauss, Hauer & Feld, Washington, D.C., for defendant Hess.
Thomas C. Green, Washington, D.C., for defendants Rodgers.
William F. Gately, H. Thomas Howell, Semmes, Bowen & Semmes, Baltimore, Md., for defendant Kovens.
Ernest N. Cory, Galesville, Md., pro se.
Messrs. Marvin Mandel, W. Dale Hess, Harry W. Rodgers, III, William A. Rodgers, Irvin Kovens, and Ernest N. Cory have filed petitions for writs of error coram nobis to vacate judgments of conviction and sentence entered against them, and for other and further relief. On October 7, 1977, this Court (Hon. Robert L. Taylor (now deceased), United States District Judge for the Eastern District of Tennessee, sitting by designation) specifically entered judgment of guilt against Mr. Mandel as to counts 1-4, 7-13, 15-18, and 21 of the indictment and against Messrs. Hess, H. Rodgers, W. Rodgers, Kovens, and Cory as to counts 1-4, 7-13, 15-18, and 24 of the indictment. Counts 1-4, 7-13, and 15-18 of the indictment charged all of the petitioners with mail fraud, in violation of 18 U.S. C. § 1341. Count 21 charged Mr. Mandel with criminal violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., by engaging in a pattern of racketeering activity through 20 acts of mail fraud (charged as separate offenses in counts 1-20) and two acts of bribery in violation of Maryland law. See 18 U.S.C. § 1961(1). Count 24 charged the other petitioners herein with criminal violation of RICO, premised solely on the 20 acts of mail fraud set out in counts 1-20. Petitioners now argue that their convictions should be vacated in view of the recent decision in McNally v. United States, ___ U.S. ___, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), wherein the Supreme Court interpreted the federal mail fraud statute as not making punishable schemes to defraud citizens of the intangible right to honest and impartial state government. Petitioners seek the remedy of an extraordinary writ of error coram nobis, stating that no other remedy remains available to them.
The writ of error coram nobis developed at common law "to relieve litigants from judicial wrongs for which there was no remedy...." Annotation, Writ of Error Coram Nobis, 38 A.L.R.Fed. 617, 622 (1978). There was some doubt as to whether this ancient writ remained available when 28 U.S.C. § 2255 was enacted in 1948. 3 C. Wright, Federal Practice and Procedure: Criminal § 592, at 428 (1982). Just prior to the enactment of § 2255, there was an amendment to Federal Rule of Civil Procedure 60(b) that seemed to have abolished writs of error coram nobis. Id. at 428-29. "But in 1954 `the ancient writ of error coram nobis rose phoenix-like from the ashes of American jurisprudence through the benign intervention of the Supreme Court' in United States v. Morgan 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954)." Id. at 429 (quoting United States v. Balistrieri, 606 F.2d 216, 219 (7th Cir.1979), cert. denied, 446 U.S. 917, 100 S.Ct. 1850, 64 L.Ed.2d 271 (1980).
In United States v. Morgan, 346 U.S. at 506, 74 S.Ct. at 250, the Supreme Court made clear that a federal district court is empowered to issue a writ or error coram nobis, pursuant to the All-Writs Act, 28 U.S.C. § 1651(a).1 Justice Reed, writing for the Court, cautioned, however, that "continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy of writ of error coram nobis only under circumstances compelling such action to achieve justice." Id. at 511, 74 S.Ct. at 252. Quite simply, an error "of the most fundamental character" must have occurred, and no other remedy may be available. Id. at 512, 74 S.Ct. at 253. Where a petitioner has fully served his prison term for a felony conviction, a writ of error coram nobis may issue because, "although the term has been served, the results of the conviction may persist." Id. "Subsequent convictions may carry heavier penalties, sic civil rights may be affected." Id. at 512-13, 74 S.Ct. at 253.2
The Second Circuit has found that the limited remedy of coram nobis was available in light of a dispositive change in federal law. See United States v. Travers, 514 F.2d 1171 (2d Cir.1974). Mr. Travers originally had been convicted of 20 counts of mail fraud and one count of conspiracy to commit mail fraud. Judge Friendly, writing for the Court on the coram nobis appeal, explained the facts underlying the original conviction as follows:
The conspiracy proved at trial was to produce, sell, and distribute counterfeit Diners' Club credit cards. While Travers was present on some occasions when a counterfeit card was used and once even requested use by another of such a card for his benefit, the substantive counts were based on use of the counterfeit cards by a co-conspirator, Pucci, for which Travers could be found guilty under the doctrine of Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). The mailings were for the purpose of collecting for goods or services already obtained by use of the counterfeit cards.
Id. at 1172. The Second Circuit affirmed Mr. Travers' conviction on direct appeal, rejecting a contention that "the mailings subsequent to use of the cards were not related to the scheme sufficiently to come within the mail fraud statutes...." Id. After the Second Circuit's decision on the direct appeal, the Supreme Court accepted a like contention in the case of United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974). In reliance on the Maze case, Mr. Travers, who had fully served his sentence, "petitioned the district court for a writ of error coram nobis, requesting that his conviction be vacated and his record expunged." The district court dismissed the petition, stating that Mr. Travers had asserted no adverse legal consequences. Id. The Second Circuit ultimately held that, even though Mr. Travers had fully served his sentence, he was entitled to a writ of error coram nobis in that he was "convicted and punished for an act that the law does not make criminal." Id. at 1176. It is the contention of petitioners that they, too, are entitled to a writ of error coram nobis, in that they were "convicted and punished for an act that the law does not make criminal." See, e.g., Paper # 630, at 33. The Government, implicitly acknowledging that conviction for conduct that is not criminal may be grounds for issuance of a writ of error coram nobis, merely retorts that "the conduct for which defendants were indicted and convicted constitutes mail fraud, even under a post-McNally interpretation of the mail fraud statute." Paper # 640, at 20.
The question now before this Court on petitioners' motions is whether circumstances compelling an extraordinary writ of error coram nobis (like the circumstances in the Travers case) are present here. An in-depth review of the procedural history of this case as well as of the newly-emergent case law on the federal mail fraud statute (predominately McNally), therefore, is in order.
On November 24, 1975, a Special Grand Jury for the District of Maryland returned a twenty-four count indictment charging petitioners with violations of 18 U.S.C. § 1341, i.e., the federal mail fraud statute, and 18 U.S.C. § 1961 et seq., i.e., RICO. Specifically, Messrs. Mandel, Hess, H. Rodgers, W. Rodgers, Kovens, and Cory were charged with mail fraud in each of the first 20 counts of the indictment; in counts 21 and 22, Mr. Mandel was charged with RICO violations, based on the 20 alleged violations of the mail fraud statute and two alleged violations of the Maryland bribery statute (Md.Ann.Code art. 27, § 23 (1957)); in count 23, Messrs. Hess, H. Rodgers, and W. Rodgers were charged with a RICO violation, based on 20 alleged violations of the mail fraud statute and two alleged violations of the Maryland bribery statute; and, in count 24, Messrs. Hess, H. Rodgers, W. Rodgers, Kovens, and Cory were charged with a RICO violation based solely on 20 alleged violations of the mail fraud statute.
Count 1 (paragraph 13) of the indictment sets forth the gist of the alleged scheme to defraud with which petitioners herein were charged:
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