US v. Walgren, CR80-126M.
| Decision Date | 07 September 1988 |
| Docket Number | No. CR80-126M.,CR80-126M. |
| Citation | 695 F. Supp. 495 |
| Parties | UNITED STATES of America, Plaintiff, v. Gordon WALGREN, Defendant. |
| Court | U.S. District Court — Western District of Washington |
John Merkel, Asst. U.S. Atty., Seattle, Wash., for plaintiff.
Anthony Savage, Seattle, Wash., for defendant.
ORDER DENYING DEFENDANT'S MOTIONS TO VACATE CONVICTIONS AND FOR NEW TRIAL
ORDER
Eight years after the convictions of defendant on racketeering, mail fraud, and Travel Act charges, it is recommended to the District Court that the racketeering and mail fraud convictions may not stand under new case law and must be vacated owing to their possible impact on any future criminal convictions.
Moreover, years after these convictions were affirmed on appeal, it is recommended that the District Court consider the materiality of defendant's "newly-discovered evidence" and ignore the two-year limitations period for such motions because an openended continuance of the motion was granted three years ago.
The Court declines to follow these recommendations.
The Report and Recommendation explains that a coram nobis writ is available only to correct errors of law or fact of a fundamental nature, "such as rendered the proceeding itself invalid." Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987), and that the petitioner must also demonstrate that "adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III." Id. There are required additional threshold showings that (1) a more usual remedy is not available, and that (2) valid reasons exist for not attacking the conviction earlier. Id.
While no other remedy is available to Defendant Walgren now, he has not shown the presence of the remaining three elements necessary to qualify for coram nobis relief.
The question of whether Defendant Walgren may at this late date have his conviction reviewed and vacated based on the holding in McNally v. United States, ___ U.S. ___, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987) concerning the scope of the Mail Fraud Statute when he did not raise the issue himself in his appeals must be answered "no" pursuant to the Supreme Court's decision in Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947). Sunal held that defendants may not collaterally attack convictions that under later Supreme Court precedent would have been invalid if they had not raised the issues on direct appeal that they sought to raise in their collateral attacks. Thus, McNally may not be applied retroactively in Walgren's case because he has shown neither that (1) he did raise the issue of the scope of the Mail Fraud Statute in his appeals, nor that (2) he had a valid reason for not doing so. The Report and Recommendation distinguished Sunal saying the change of law therein was procedural and not substantive as in McNally; instead, Davis v. United States, 417 U.S. 333, 345-46, 94 S.Ct. 2298, 2304-05, 41 L.Ed.2d 109 (1974) was cited for the retroactive application of McNally. The procedural versus substantive law distinction drawn by the Magistrate is not significant to Sunal's holding. There is a crucial difference between Davis and Sunal, which the Davis court recognized: there was an appeal of the issue in question in Davis while in Sunal there was not. Referring to Sunal, Davis observed: "The Court was careful to point out that `if Sunal and Kulick had pursued the appellate course and failed, their cases would be quite different.'" Davis, 417 U.S. at 345, 94 S.Ct. at 2304.
The Magistrate also reviewed lower court decisions from various jurisdictions dealing with the specific issue of McNally's retroactivity. The decisions were split, and he followed the opinion in Ingber v. Enzor, 841 F.2d 450 (2d Cir.1988). The Defendant in Ingber challenged his conviction of February 1987 by a petition pursuant to 28 U.S.C. § 2255 filed shortly after the McNally decision, and on July 15, 1987, the Trial Court reversed Ingber's convictions pursuant to McNally. The Trial Court's rationale was that the Court lacked authority to convict or punish the conduct charged, for it was not criminal under McNally. There is no indication whether the issue in his § 2255 petition was asserted on appeal.
Taking the opposite view, the Court in United States v. Smith, 675 F.Supp. 978 (M.D.Pa.) cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 832 (1987), characterized the conclusion in McNally as a new interpretation of a statute and, citing Sunal, questioned McNally's application in a collateral attack where the defendant did not raise the issue of statutory interpretation in the Trial Court or in his direct appeals:
In Sunal v. Large, 332 U.S. 174 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), the United States Supreme Court held that defendants may not collaterally attack convictions that under later Supreme Court precedent would have been invalid because they had not raised the issues on direct appeal which they sought to raise in their collateral attack.
There is legitimate concern for finality in criminal prosecutions behind the Smith and Sunal decisions. Criminal jurisprudence is in constant flux. Principles of law are clarified and refined as countless permutations of circumstances are presented in cases before the Courts. The Courts could count on little repose for decided cases if new cases were applied retroactively regardless of whether the earlier defendants raised the newly determined issue. Indeed, in Sunal the Justices observed, "We are dealing here with a problem which has radiations far beyond the present cases," 332 U.S. at 181, 67 S.Ct. at 1592, and reasoned:
If defendants who accept the judgment of conviction and do not appeal can later renew their attack on the judgment by habeas corpus, litigation in these criminal cases will be interminable. Wise judicial administration of the federal courts counsels against such course, at least where the error does not trench on any constitutional rights of defendants nor involve the jurisdiction of the trial court.
Id. at 182, 67 S.Ct. at 1593. In Walgren's case, the error does not trench on any constitutional rights nor involve the Trial Court's jurisdiction; it concerns only a nonconstitutional reinterpretation of a statute.
Defendant Walgren is attacking his conviction based on a United States Supreme Court decision issued many years later even though he has failed to show that he raised the issue in the Trial Court or on appeal or that he had a valid reason for not doing so. This he may not do under Sunal. Even if Defendant Walgren were to argue that an appeal on this issue did not appear viable in view of the jurisprudence extant, Sunal forecloses raising the issue now.
The defendants in Sunal were attempting to pursue reversal of their convictions under new Supreme Court decisions by habeas corpus petition. While the general rule that the writ of habeas corpus "will not be allowed to do service for an appeal," id. at 178, 67 S.Ct. at 1590, is not absolute, the Supreme Court found none of the exceptions present and held:
But since they chose not to pursue the remedy which they had, we do not think they should now be allowed to justify their failure by saying they deemed any appeal futile.
Id. at 181, 67 S.Ct. at 1592. The same reasoning applies with greater force in the case of Walgren who is seeking relief pursuant to a writ of error coram nobis, a more extraordinary avenue than habeas corpus. Defendant Walgren has failed to show that he either raised the issue herein on appeal or had a valid and sufficient reason for not doing so. Defendant has failed to carry his burden on the first element to be shown for coram nobis relief.
He has also failed to carry his burden on the second element, that of demonstrating fundamental error.
The Report and Recommendation concluded that Defendant was convicted for conduct that under McNally v. United States, ___ U.S. ___, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987) was not a crime. Answering the threshold inquiry referenced in Davis — whether the claimed error of law was "a fundamental defect which inherently results in a complete miscarriage of justice," and whether "it ... presents exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent" — Davis, 417 U.S. at 346, 94 S.Ct. at 2305, the Magistrate concluded that allowing the defendant's conviction for mail fraud to stand would result in a complete miscarriage of justice. This Court cannot so conclude.
The Court in McNally held that "the mail fraud statute clearly protects property rights, but does not refer to the intangible right of the citizenry to good government." ___ U.S. at ___, 107 S.Ct. at 2875. Therefore, in McNally, since there was no charge or jury instruction requiring a finding that the government itself had been defrauded of any money or property, the convictions were invalid. The Report and Recommendation explained that since Walgren's case was charged, argued, and instructed under a theory that the defendants had defrauded the citizens of the state of the right to good government, the Mail Fraud conviction could not stand in view of McNally.
On the contrary, the unethical conduct in McNally that did not amount to a crime within reach of the Mail Fraud Statute does not compare with the criminal conduct with which Defendant Walgren was charged, about which the jury was instructed, and for which Defendant Walgren was convicted.
Defendant Walgren was convicted on three counts: Count II, RICO (19 U.S.C. § 1952), Count XVII, Travel Act (18 U.S.C. § 1952), and Count XXIV, Mail Fraud (18 U.S.C. §§ 1341 and 1342), and was sentenced to five years in custody on each count, to run concurrently. (He has served his...
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U.S. v. Walgren
...lapsed because of the "grossly excessive" delay. Alternatively, the court also rejected the motion on the merits. United States v. Walgren, 695 F.Supp. 495, 503 (W.D.Wash.1988). The coram nobis petition was based on the Supreme Court's decision in McNally v. United States, 483 U.S. 350, 107......