US v. McClelland

• Decision Date: 07 December 1989
• Docket Number: No. CR-R-83-16-ECR.,CR-R-83-16-ECR.
• Citation: 732 F. Supp. 1534
• Parties: UNITED STATES of America, Plaintiff, v. Joseph B. McCLELLAND, Defendant.
• Court: U.S. District Court — District of Nevada

732 F. Supp. 1534

UNITED STATES of America, Plaintiff, v. Joseph B. McCLELLAND, Defendant.

No. CR-R-83-16-ECR.

United States District Court, D. Nevada.

December 7, 1989.

Richard Pocker, Asst. U.S. Atty., Las Vegas, Nev., for plaintiff.

N. Patrick Flanagan, Asst. Federal Public Defender, Reno, Nev., for defendant.

ORDER

EDWARD C. REED, Jr., Chief Judge.

Petitioner McClelland was convicted of attempted interference with commerce by extortion, a violation of 18 U.S.C. § 1951 (1984). On 16 August 1984, he was sentenced to a term of one year and one day, which sentence was fully served by the time petitioner filed his petition for habeas corpus on 14 July 1988 (document # 99).

The relevant facts are not in dispute. In August, 1984, McClelland was convicted for violating provisions of the Hobbs Act, 18 U.S.C. § 1951. Section 1951 provides in pertinent part:

(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.

(b) As used in this section —

. . . . .

(2) The term "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

At trial, the jury was instructed that the government need not show that McClelland induced an extortion payment. The government was required to prove only "that a public official obtained money to which he was not entitled, and which he obtained only because of his official position." On appeal to the Ninth Circuit, McClelland's conviction was affirmed. United States v. McClelland, 731 F.2d 1438 (9th Cir.1984), cert. denied, 472 U.S. 1010, 105 S.Ct. 2708, 86 L.Ed.2d 723 (1985). The circuit court affirmed the district court's interpretation of the Hobbs Act in holding that inducement was not an essential element of extortion. Id. at 1441.

Four years later, the Ninth Circuit overruled its reasoning in McClelland and held that inducement is an essential element to the crime of extortion. United States v. Aguon, 851 F.2d 1158 (9th Cir.1988) (en banc) (Aguon II). Based on this change in the law of the Circuit, petitioner requests this Court to vacate his conviction. He claims that he was found guilty for acts which the law no longer regards as criminal.

In our Order of 31 March 1989 (document # 108), we held that McClelland's petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2255 (1971), shall be treated as one for coram nobis. See 28 U.S.C. § 1651(a) (1966); Woykovsky v. United States, 309 F.2d 381, 384 (9th Cir.1962), cert. denied, 374 U.S. 838, 83 S.Ct. 1889, 10 L.Ed.2d 1059 (1963). This is appropriate because petitioner was no longer "in custody" at the time his petition was filed. Furthermore, we relied on Davis v. United States, 417 U.S. 333, 346-47, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974), in holding that a change in the law is an appropriate subject of a coram nobis proceeding. The parties were instructed to file briefs presenting specific facts addressed to the propriety of coram nobis relief. Specifically, the parties were instructed to present facts from the record that would support or refute an inference that McClelland induced payments. Those briefs having been filed (documents # 109 and 111), we are prepared to rule on petitioner's request for coram nobis relief.

Coram nobis is an "extraordinary remedy," 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). Its purpose is to correct errors of fact that affect the regularity or validity of legal proceedings, and legal errors of a constitutional or fundamental proportion.¹ United States v. Wickham, 474 F.Supp. 113, 116 (C.D.Cal.1979). See also, United States v. McCord, 509 F.2d 334, 341 (D.C. Cir.1974) (coram nobis relief available for "constitutional or jurisdictional errors or serious defects in the trial either not correctable on appeal or where exceptional circumstances justify the failure to appeal on those grounds"), cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975). Coram nobis should be granted only "to correct errors of the most fundamental character where the circumstances are compelling to achieve justice." CorreaNegron v. United States, 473 F.2d 684, 685 (5th Cir.1973), cert. denied, 414 U.S. 870, 94 S.Ct. 89, 38 L.Ed.2d 88 (1973). When a criminal judgment is assailed in a coram nobis proceeding, the petitioner must overcome a presumption of regularity and correctness in the proceedings. Morgan, 346 U.S. at 512, 74 S.Ct. at 253. See also Ybarra v. United States, 461 F.2d 1195, 1198-99 (9th Cir.1972).

For coram nobis relief to lie, the petitioner must show that: (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) that the error is of the most fundamental character. Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987).

Although petitioner's brief does not address the above criteria, it appears that petitioner has satisfied the first three. First, the more usual writ of habeas corpus is not available to petitioner; since the change in law did not occur until after petitioner had completed his sentence, petitioner does not satisfy the "in custody" requirement for habeas relief. See Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968); United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1470 (9th Cir.1988), cert. denied, ___ U.S. ___, 110 S.Ct. 51, 107 L.Ed.2d 20 (1989). Second, petitioner has valid reasons for not attacking his conviction earlier. Indeed, petitioner did directly appeal his conviction in McClelland, 731 F.2d at 1438. Furthermore, petitioner brought this collateral attack only thirteen days after Aguon II, which overruled the basis of his conviction, was decided.

Third, the "case or controversy" requirement is satisfied, in as much as the Supreme Court has held that "most criminal convictions do in fact entail adverse collateral legal consequences," Sibron v. New York, 392 U.S. 40, 55, 88 S.Ct. 1889, 1898, 20 L.Ed.2d 917 (1968), and the government has failed to show that there is "no possibility" that any collateral legal consequences will be imposed on the basis of the challenged conviction. Id. See also Hirabayashi, 828 F.2d at 606; Chavez v. United States, 447 F.2d 1373, 1374 (9th Cir.1971). In the Ninth Circuit, there is no need for petitioner to show specific adverse consequences that he presently is suffering or that he is likely to suffer in the future. See e.g., Byrnes v. United States, 408 F.2d 599, 601 (9th Cir.1969).

The fourth criterion petitioner must show to warrant coram nobis relief is that the error is of the most fundamental character, perpetuating a manifest injustice. It is to this issue that the parties address their arguments. The question is whether, in light of the Aguon II requirement that inducement is an essential element of extortion, giving the erroneous jury instruction was such a fundamental error to warrant coram nobis relief. Put another way, does the record support an inference that McClelland did induce payments, such that his conviction can withstand coram nobis attack.²

We believe that it does. In Aguon II, the Court explained that

"inducement" can be in the overt form of a "demand," or in a more subtle form such as "custom" or "expectation" such as might have been communicated by the nature of defendant's prior conduct of his office. Reliance on a system of expecting payments in exchange for public favors can itself be the necessary act of inducement if the public official previously establishes or acquiesces in the system and if the donor is sufficiently aware of the expectation created by prior acts of extortion. Accordingly, the jury instructions must incorporate inducement, which may be explicit or implicit, as a required element of the crime of extortion under the Hobbs Act.

Aguon II, 851 F.2d at 1166-67.

In the later case of United States v. Egan, 860 F.2d 904 (9th Cir.1988), the Ninth Circuit shed more light on the inducement issue. There, the Court held that

to be guilty of extortion, rather than mere acceptance of a bribe, the public official must do something beyond accepting an unsolicited payment. He must communicate to members of the public that favors are for sale. Such inducement can be a demand, a request, or even a "system of expecting payments in exchange for public favors" established or acquiesced in by the public official.

Id. at 907 (citations omitted) (quoting Aguon II, 851 F.2d at 1166). Based on these standards for finding inducement, we believe the record supports an inference that McClelland induced a payment of $3,750.00 from undercover agent Rybar.

The record contains transcripts of four face-to-face meetings between McClelland and undercover agent Rybar. During this time, McClelland was an elected member of the City Council of Reno, Nevada. Rybar posed as an out-of-town advisor to a group of doctors interested in building a bank in Reno. Rybar communicated to McClelland that he wanted to anticipate any zoning problems they might encounter, and eliminate those as quickly as possible. McClelland indicated that he was basically pro-development, and cited examples of his support of development in the past. As their relationship developed, the conversations between Rybar and McClelland become more and more open about the type of help Rybar is interested in, and...