Weichert v. U.S.
| Decision Date | 24 October 2006 |
| Docket Number | No. 5:84-CR-0139.,No. 6:05-CV-0571.,6:05-CV-0571.,5:84-CR-0139. |
| Citation | 458 F.Supp.2d 57 |
| Parties | Robert M. WEICHERT, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Northern District of New York |
Robert M. Weichert, Baldwinsville, NY, pro se.
Hon. Glenn T. Suddaby, United States Attorney, William H. Pease, Esq., Ass't U.S. Attorney, of counsel, Syracuse, NY.
Timberline Energy Corp. ("Timberline Energy") was a New York corporation in the business of manufacturing and distributing wood and coal burning stoves and related products. On April 13, 1981, Timberline Energy filed a petition in the United States Bankruptcy Court of the Northern District of New York for reorganization under Chapter 11 of the bankruptcy code. In July 1981, Robert M. Weichert ("Weichert" or "petitioner"), who at the time was President and principal owner of Adirondack Wood Stove Works, Inc. ("Adirondack"), together with Ivan Preslar, then-President of Timberline Energy, announced that Weichert was assuming managerial control over Timberline Energy. Shortly thereafter, Weichert and Preslar agreed to form a new business entity named Timberline East, Inc. ("Timberline East") in which Preslar was to be a silent partner. In August 1981, Weichert opened a checking account on behalf of Timberline East, and thereafter deposited numerous checks issued to Timberline Energy into the Timberline East checking account.
On September 10, 1981, the Chapter 11 bankruptcy petition filed by Timberline Energy was converted into one for liquidation under Chapter 7 of the bankruptcy code. Based upon that conversion, federal marshals padlocked the premises of Timberline Energy that same day.
The prosecution established at Weichert's criminal trial that during the weeks immediately prior to the court-ordered shutdown of Timberline Energy, he and Preslar, fraudulently transferred large amounts of Timberline Energy's raw materials, stoves, and office equipment from the bankruptcy estate. For example, the Government demonstrated that just before Timberline Energy's petition was changed to one requiring its liquidation, petitioner directed the removal of large quantities of Timberline Energy's inventory to Adirondack as well as to premises he owned. The evidence further established that after Timberline Energy's liquidation had been ordered by the bankruptcy court, an employee of that company returned a check to the Agway corporation ("Agway") which had been made payable to Timberline Energy and requested that Agway issue a new check in the same amount that was payable to Timberline East. Agway complied with the request and the check was deposited in Timberline East's checking account.
On October 19, 1984, a grand jury for the Northern District of New York returned an indictment against Weichert, Preslar, and others in which Weichert was charged with engaging in a criminal conspiracy to conceal from the United States bankruptcy trustee the assets of Timberline Energy by improperly transferring its inventory, cash, and other property to Timberline East, in violation of 18 U.S.C. § 371. In that accusatory instrument, Weichert was also charged with four substantive counts of bankruptcy fraud, in violation of 18 U.S.C. § 152. See, e.g. United States v. Preslar et al, 608 F.Supp. 986, 987 (N.D.N.Y.1985) (Munson, J.). On May 31, 1985, following a three-day jury trial, Weichert was convicted on all counts, and thereafter was sentenced to a total of eight years imprisonment, five of which was ordered suspended by the district court. His convictions and sentences were affirmed in all respects on appeal. United States v. Weichert, 783 F.2d 23 (2d Cir. 1986).
Weichert thereafter filed a Motion to Vacate, Set Aside or Correct his Sentence pursuant to 28 U.S.C. § 2255. In his application, he argued that: (1) the indictment was defective; (2) he was the victim of prosecutorial misconduct; (3) the presentence report prepared by the Probation Department of the Northern District of New York was erroneous; and (4) he received the ineffective assistance of trial counsel. In a Memorandum-Decision and Order dated August 19, 1987, United States District Judge Lloyd F. MacMahon of the Southern District of New York, sitting by designation in the Northern District, denied the § 2255 application in all respects. See United States v. Weichert, 668 F.Supp. 125 (N.D.N.Y.1987). Although he did not appeal the order denying his Motion to Vacate, e.g., United States v. Weichert, 836 F.2d 769, 771 n. 2 (2d Cir.1988), the petitioner eventually succeeded in reducing the amount of restitution he was required to pay as a result of his criminal conduct from $200,000.00 to $155,956.64 through an action he commenced pursuant to Rules 32 and 35 of the Federal Rules of Criminal Procedure. See United States v. Weichert, 89 B.R. 346, 351 (N.D.N.Y.), aff'd, 862 F.2d 305 (2d Cir. 1988).
On May 12, 2005, Weichert filed this application for a writ of error coram nobis in this District. See Dkt. No. 1. In that submission, he argues that his 1985 conviction must be set aside because his conviction was purportedly obtained as a result of perjurious testimony provided by the bankruptcy trustee at the criminal trial. See Affidavit of Robert M. Weichert in Support of Coram Nobis Application (5/11/05) (attachment to Dkt. No. 1) ("May, 2005 Aff.") at pp. 1-9. After filing his coram nobis application and attachments thereto, petitioner filed several additional submissions in further support of that application for relief. See Dkt. Nos. 8, 13, and 14.
On December 27, 2005, respondent filed a memorandum of law in opposition. Dkt. No. 15.
"Coram nobis is an `extraordinary remedy' authorized under the All Writs Act, 28 U.S.C. § 1651(a), generally sought to review a criminal conviction where a motion under 28 U.S.C. § 2255 is unavailable because petitioner is no longer serving a sentence." Porcelli v. United States, 404 F.3d 157, 158 (2d Cir.2005) (quoting United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 98 L.Ed. 248 (1954)). Coram nobis applications may not to be used as substitutes for appeal, however, and a petitioner seeking such relief bears a substantial burden. As the Second Circuit noted in Foont v. United States, 93 F.3d 76 (2d Cir.1996), such relief "is strictly limited to those cases in which errors of the most fundamental character have rendered the proceeding itself irregular and invalid." Id. at 78. For a district court to properly grant a writ of error coram nobis, a petitioner must demonstrate that: (1) he continues to suffer legal consequences from his conviction that may be remedied by the granting of the writ (2) sound reasons exist for his failure to seek appropriate relief at an earlier time; and (3) the circumstances demonstrate that the requested relief must be granted to achieve justice. See United States v. Mandanici 205 F.3d 519, 524 (2d Cir. 2000) (internal quotation and citation omitted).
In support of his coram nobis application, Weichert argues that Harold P. Goldberg, Esq. ("Goldberg")—who was appointed the bankruptcy trustee with respect to Timberline Energy after the bankruptcy petition was filed—committed perjury before the grand jury that indicted Weichert and during the course of petitioner's criminal trial. See May, 2005 Aff. at ¶¶ 4-9.2 In support of this claim, petitioner notes that in testifying at the criminal trial about his review of the assets of Timberline Energy after bankruptcy proceedings had been initiated, Goldberg declared that:
[the company's] assets consisted of a few stoves in a finished condition, general inventory or raw materials available to be fabricated into wood-stoves, and certain equipment that was in the pla[n]t such as welding machines, painting machines, blowers, furnaces, things of that nature.
See Transcript of Trial of United States v. Weichert et al. (5/30/85) (Dkt. No. 1, Exh. 1) ("Trial Tr.") at p. 4. Petitioner argues that the itemized list that was prepared following the bankruptcy sale of Timberline Energy's assets establishes that 333 stoves of that company were sold at the bankruptcy auction—a quantity far greater than the "few" stoves about which Goldberg testified at trial. Compare May 2005 Aff. at ¶ 6 & Dkt. No. 1, Exh. 6 with Trial Tr. at p. 4. Petitioner claims that the foregoing establishes that: (1) Goldberg committed perjury at the criminal trial and before the grand jury that indicted him; (2) the Government withheld Brady material 3
to which he was entitled prior to his criminal trial; and (3) his conviction must be set aside. May 2005 Aff. at ¶¶ 10-12.
As additional proof of his perjury claim, petitioner notes that subsequent to that testimony, a hearing was held before the Hon. Stephen D. Gerling of the United States Bankruptcy Court for this District on September 23, 1986 at which Goldberg also testified. See Dkt. No. 1, Exh. 3 ("September 1986 Tr."). At that proceeding, Goldberg testified that it was "impossible" to determine exactly what was stolen from Timberline Energy as a result of Weichert's conduct, and because no corporate books or records were maintained by that company, and former employees were forced to merely estimate the number of stoves that were on hand at the time Timberline Energy was shut down. September 1986 Tr. at p. 4. Goldberg further testified that there was "no conceivable way" he could prove the amount of the loss sustained by Timberline Energy. September 1986 Tr. at p. 4. Petitioner argues that Goldberg's testimony at the September 1986 hearing before Judge Gerling further establishes that Goldberg committed perjury when he testified at trial that only "a few" stoves were present at Timberline Energy when it was padlocked by the United States Marshals. May 2005, Aff. at ¶ 8.
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