Wickersham v. U.S.
| Decision Date | 20 December 1996 |
| Docket Number | Civ. A. No. 1:95cv1046. |
| Citation | 976 F.Supp. 551 |
| Parties | Charles T. WICKERSHAM v. UNITED STATES of America. |
| Court | U.S. District Court — Eastern District of Texas |
Richard Kuniansky, Dameris & Kuniansky, Houston, TX, for plaintiff.
Paul Naman, Asst. U.S. Atty., U.S. Attorney's Office, Beaumont, TX, for defendant.
MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE's REPORT AND RECOMMENDATION
Movant Charles T. Wickersham brought this motion to vacate, set aside or correct judgment pursuant to 28 U.S.C. § 2255.
The court heretofore referred this matter to the Honorable Earl S. Hines, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The magistrate judge recommends the motion be denied.
The court has received and considered the Report and Recommendation of United States Magistrate Judge filed pursuant to such referral, along with the record, pleadings and all available evidence. No objections to the Report and Recommendation of United States Magistrate Judge were filed by the parties.
ORDERAccordingly, the findings of fact and conclusions of law of the magistrate judge are correct and the report of the magistrate judge is ADOPTED. A final judgment will be entered in this case in accordance with the magistrate Judge's recommendations. The order referring this case to the magistrate judge is hereby VACATED.
This report addresses a motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255.1 Movant Charles T. Wickersham asserts his conviction for making a false statement on an income tax return (tax fraud) is invalid because the court failed to submit to the jury an essential element of the offense, viz., materiality of the false statement. Movant complains that the trial judge, found that movant's false statement was material as a matter of law. Movant concedes, however, that the trial judge followed governing circuit law at the time of trial.
The Fifth Amendment right to due process and the Sixth Amendment right to trial by jury require that the element of materiality be submitted to a jury for decision. United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). Gaudin, however, was not decided until well after movant's conviction became final. Thus, the court must determine as a threshold matter whether Gaudin applies retroactively.
Under settled principles of analysis, movant may not claim the benefit of Gaudin's new rule unless it 1) placed movant's conduct beyond the reach of criminal law; or 2) announced a new watershed rule of criminal procedure that makes accurate verdicts substantially more likely and is essential to fundamental fairness. As Gaudin did not decriminalize movant's conduct, the first ground is inapplicable. As to the second, movant has not articulated any plausible basis for concluding that the trial judge's determination of materiality seriously diminished likelihood of an accurate verdict or resulted in a conviction without a finding of every element of the offense beyond a reasonable doubt by an impartial decision-maker. Accordingly, movant is not entitled to the benefit of the new Gaudin rule, and this report recommends denial of the motion.
On July 2, 1992, the federal grand jury for the Eastern District of Texas, Beaumont Division, returned an eight count indictment against movant, Wayne Frederick and Lester Winfree, all citizens of Orange County, Texas. They were charged with conspiracy to devise a scheme and artifice to defraud in violation of 18 U.S.C. § 371, and with three related substantive counts of mail fraud under 18 U.S.C. § 1341. Defendants Frederick and Winfree were commissioners of the Orange County Port and Navigation District (OCPND). The charged conspiracy involved Wickersham selling a structure called the Peveto Grain Elevator to OCPND at an inflated price and in disregard of standard procedures normally utilized when obtaining property for OCPND.
Movant was also charged with tax fraud, i.e., making a false statement on his tax return in violation of 26 U.S.C. § 7206(1). The alleged false statement was that the grain elevator was sold under threat of condemnation. Finally, movant was charged with engaging in a monetary transaction in property derived from unlawful activity in violation of 18 U.S.C. § 1957(a).
A jury trial was conducted between November 23, 1992 and December 8, 1992. The jury convicted movant on the tax fraud count, but acquitted him on all other charges. Regarding the tax fraud count, the district court without objection instructed the jury that materiality was not a question for it to decide. The court determined that the issue of materiality was a question of law to be decided by the court.2 After the jury returned its verdict, the trial judge made a specific finding on the record that movant's false statement on his income tax return was material. The trial judge followed governing circuit law in removing the issue of materiality from the jury's consideration and making the finding as a matter of law.3
Movant appealed but raised only issues unrelated to materiality: (1) insufficient evidence, (2) prosecutorial misconduct, (3) error in giving a modified "Allen" charge, (4) error in not granting a new trial because jurors were improperly affected by the "Allen" charge, and (5) defective indictment. The Fifth Circuit Court of Appeals affirmed the conviction on August 5, 1994 in a published opinion. United States v. Wickersham, 29 F.3d 191 (5th Cir.1994).
The present motion to vacate alleges that the court's charge to the jury violated movant's Fifth Amendment due process rights and Sixth Amendment right to trial by jury. Movant argues that the court incorrectly instructed the jury regarding the issue of materiality. Movant relies on a subsequent Supreme Court decision in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444.
In Gaudin, the Court held that the element of materiality in a false statement case (18 U.S.C. § 1001) is an element of the offense that must be submitted to the jury for a decision. Id. at 520-22, 115 S.Ct. at 2319 ( violation of 18 U.S.C. § 1001) Movant argues that there is no substantive distinction between the "materiality" element of 18 U.S.C. § 1001 and the "materiality" element of the tax fraud crime with which movant was charged and convicted.
A person convicted of a federal crime may move to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 on four separate grounds: The sentence was imposed in violation of the constitution or laws of the United States; the court was without jurisdiction to impose the sentence; the sentence exceeds the statutory maximum sentence; and the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255; see United States v. Cates, 952 F.2d 149, 151 (5th Cir.), cert. denied, 504 U.S. 962, 112 S.Ct. 2319, 119 L.Ed.2d 238 (1992).
Movant correctly asserts that the rationale of Gaudin applies to a tax fraud conviction under 26 U.S.C. § 7206(1). See United States v. McGuire, 99 F.3d 671, 672-73 (5th Cir.1996) (per curiam). Thus, the assertion of constitutional error is not frivolous. However, this does not end the inquiry in movant's favor.
Under ordinary circumstances, courts considering Section 2255 motions determine first if the issue presented was raised and disposed of on direct appeal. If so, the matter cannot be relitigated by collateral attack. United States v. Kalish, 780 F.2d 506, 508 (5th Cir.), cert. denied, 476 U.S. 1118, 106 S.Ct. 1977, 90 L.Ed.2d 660 (1986). If not, courts inquire why, and still refuse to entertain the motion unless the movant shows cause for not presenting the error on direct appeal and actual prejudice resulting from the error.4
Movant's conviction was affirmed by the Fifth Circuit Court of Appeals on November 1, 1994. The Supreme Court did not issue its decision in Gaudin until over seven months later. Thus, movant can show cause for not raising the error on direct appeal. But, for movant to be entitled to relief based on Gaudin, that decision must apply retroactively. Thus, a threshold question is whether movant may apply the Gaudin rule to the instant case. A negative determination would moot any additional review of movant's claim.
The retroactivity analysis begins by noting that a motion under Section 2255 constitutes a collateral attack on a conviction. While new rules are applied on direct review,5 they generally are not applied in collateral attacks. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989) (plurality opinion).6 Thus, when, as here, the motion to vacate sentence is based on an intervening change in law, and the conviction has become final prior to the new rule being announced, movant must satisfy a more stringent standard. To benefit from retroactive application of Gaudin, movant must demonstrate eligibility under settled principles designed to strike a balance between individual rights and societal interests in finality of convictions and in conservation of scarce judicial resources. See Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 2831, 111 L.Ed.2d 193 (1990).
Federal courts are barred, generally, from applying new constitutional rules of criminal procedure retroactively on collateral review. Teague, 489 U.S. at 310, 109 S.Ct. at 1075. "[N]ew constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." Id. Under Teague, new rules may be applied retroactively in habeas proceedings only if they come within one of two narrow exceptions discussed later. The nonretroactivity doctrine applies equally to a novel application...
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USA v. Mandanici
...of 18 U.S.C. 1623(a), from 2 SEVENTH CIRCUIT, FEDERAL CRIMINAL JURY INSTRUCTIONS 106-07 (West 1984)); Wickersham v. United States, 976 F. Supp. 551, 553 & n.2 (E.D. Tex. 1996) (quoting a jury instruction with respect to the offense of making false statements on an income tax return, in viol......