United States v. Alan R. Stoneman, 870 F.2d 102, 3rd Cir. (1989)
United States v. Alan R. Stoneman, 870 F.2d 102, 3rd Cir. (1989)
United States v. Alan R. Stoneman, 870 F.2d 102, 3rd Cir. (1989)
2d 102
I.
1
Appellant Alan R. Stoneman appeals from the United States District Court for
the Middle District of Pennsylvania's order denying his petition for a writ of
error coram nobis. Stoneman seeks to vacate his conviction for conspiracy
under 18 U.S.C.A. Sec. 371 (West 1966) to violate the mail fraud statute, 18
U.S.C.A. Sec. 1341 (West 1984) and to utilize a facility of interstate commerce
in violation of the Interstate Travel in Aid of Racketeering Act (Travel Act), 18
U.S.C.A. Sec. 1952 (West 1984), based on the United States Supreme Court's
recent decision in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97
L.Ed.2d 292 (1987). I conclude in Part V that the district court's charge on mail
fraud only required the jury to find a loss of intangible rights in order to
convict, and therefore, in light of McNally, was error. However, a majority of
the panel believes that, under the evidence, just as in the companion case of
United States v. Asher, 854 F.2d 1483 (3d Cir.1988), the loss of money was
implicit in the intangible rights scheme. More specifically, the majority is
unable to hypothesize a set of circumstances under which the jury could have
found Stoneman guilty of depriving the citizens of the Commonwealth of
Pennsylvania of their right to honest government (an impermissible intangible
right under McNally ) without also having found that Stoneman was involved
in a scheme the sole purpose of which was to insure that a company known as
CTA, Ltd. (CTA) obtained a no-bid Federal Insurance Contribution Act (FICA)
recovery contract at a substantially greater cost to the Commonwealth of
Pennsylvania than a contract obtained through traditional competitive bidding.
The majority believes that the indictment, evidence and jury charge in this case
are essentially the same as Asher, and that on the authority of Asher the
conviction must be affirmed.
II.
2
Stoneman and others were indicted in October of 1984 by a federal grand jury
and charged with conspiracy, 18 U.S.C.A. Sec. 371, violations of the Travel
Act, 18 U.S.C.A. Sec. 1952(a)(3), and mail fraud, 18 U.S.C.A. Sec. 1341. The
indictment alleged a scheme to obtain FICA recovery contracts from state and
local entities by bribing public officials.1 Stoneman and co-defendant William
T. Smith, Jr. pled not guilty and were tried before a jury. After a lengthy trial,
the jury found Smith guilty of conspiracy, four counts of mail fraud and four
counts of utilizing a facility of interstate commerce in aid of racketeering. The
jury convicted Stoneman only of conspiracy. Both defendants were sentenced to
prison terms and fined.
On June 24, 1987, the Supreme Court held in McNally that the mail fraud
statute did not encompass a scheme to defraud which deprived the victims of
their intangible right to good and honest government.2 In November of 1987
Stoneman petitioned the district court for a writ of error coram nobis to vacate
his conviction based on McNally. The district court denied Stoneman's petition,
concluding that McNally did not apply to collateral attacks on final decisions.3
In the alternative, the district court reviewed the indictment, the evidence
introduced at trial and the jury instructions and concluded that the conviction
was valid under McNally and our application of McNally in United States v.
Piccolo, 835 F.2d 517 (3d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 2014,
100 L.Ed.2d 602 (1988). Stoneman now appeals.
III.
5
Those substantive errors which result in a person's charge and conviction for
something not a crime are fundamental. In determining what is not a crime,
authoritative Supreme Court cases are as much a part of the law as the statute
itself. Hence, when the Supreme Court decided in McNally that the statute
punished only persons who caused tangible loss to victims, that requirement
became a part of the definition of the crime. A person charged in an indictment
that did not include a loss of tangible rights or convicted by evidence that did
not show a violation is punished for something not a crime and is entitled to
collateral review. If a defendant were convicted and punished "for an act that
the law does not make criminal[, t]here can be no room for doubt that such a
circumstance 'inherently results in a complete miscarriage of justice' and
'present[s] exceptional circumstances' that justify collateral relief." Davis v.
United States, 417 U.S. 333, 346-47, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109
(1974) (in habeas corpus proceeding, petitioner may assert change in the
substantive law after his conviction).
IV.
7
The writ of error coram nobis is available to federal courts in criminal matters
under the All Writs Act, 28 U.S.C.A. Sec. 1651(a) (West 1966).6 United States
v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed.2d 248 (1954). It is used to
attack allegedly invalid convictions which have continuing consequences, when
the petitioner has served his sentence and is no longer "in custody" for purposes
of 28 U.S.C.A. Sec. 2255. The petitioner must show that he is suffering from
Use of the writ is appropriate to correct errors for which there was no remedy
available at the time of trial and where "sound reasons" exist for failing to seek
relief earlier. Id. at 512, 74 S.Ct. 253. "Only where there are errors of fact of
'the most fundamental kind, that is, such as to render the proceeding itself
irregular and invalid', [sic] can redress be had." United States v. Cariola, 323
F.2d 180, 184 (3d Cir.1963) (quoting United States v. Mayer, 235 U.S. 55, 69,
35 S.Ct. 16, 19-20, 59 L.Ed. 129 (1914)). The error must go to the jurisdiction
of the trial court, thus rendering the trial itself invalid. An error which could be
remedied by a new trial, such as an error in jury instructions, does not normally
come within the writ. See Mayer, 235 U.S. at 69, 35 S.Ct. at 19-20; United
States v. Gross, 614 F.2d 365, 368 (3d Cir.) (per curiam) (conduct of deputy
marshal, who annoyed several jurors and expressed romantic interest in
particular juror, insufficient to warrant issuance of writ), cert. denied, 447 U.S.
925, 100 S.Ct. 3019, 65 L.Ed.2d 1118 (1980). Earlier proceedings are
presumptively correct and the petitioner bears the burden to show otherwise.
Cariola, 323 F.2d at 184.
10
Here, the indictment alleges and the evidence introduced by the government
shows that Stoneman schemed to defraud the Commonwealth of Pennsylvania
by securing no-bid FICA contracts through the bribery of public officials and
did, in fact, cause a money loss to the Commonwealth through such a scheme.
11
12It was part of said conspiracy and scheme or artifice to defraud and use the
3.
facilities of interstate commerce to promote, manage, establish, carry on and
facilitate bribery that: ... (h) The defendants would obtain lucrative contracts from
state and local government without competitive bidding, notwithstanding the fact
that others were willing to perform substantially identical FICA recovery work at a
much lower cost.
13
Appendix (App.) at 33, 37-38. Count I also alleges that one of the objects of the
conspiracy was "to defraud the citizens of the Commonwealth of Pennsylvania,
and other states where the defendants did business, of the tangible monetary
savings and financial benefits" by corruptly influencing various elected public
officials. Id. at 39. Although the indictment also alleges a scheme to defraud the
citizens of Pennsylvania of their intangible rights to good and honest
government, the quoted passages are sufficient to allege a scheme designed to
defraud the citizens of money, a violation of Sec. 1341 under McNally.
Stoneman has failed to show that the earlier proceedings were "irregular and
invalid," in that the district court had no jurisdiction to try him for the alleged
crimes.
14
We have also considered whether the evidence presented at trial was sufficient
to establish that Stoneman and his co-defendants schemed to cause a loss of
money to the citizens of Pennsylvania. We agree with the district court that it
was sufficient to show that the defendants schemed to cause such a loss. As we
discussed in affirming Stoneman's conviction on direct appeal, his company,
CTA fraudulently obtained a FICA recovery contract for Pittsburgh employees
at a cost of $150,000, even though another contractor had bid $35,000. Smith,
789 F.2d at 199. The defendants also fraudulently tried to obtain a FICA
recovery contract for Pennsylvania state employees at a cost to the
Commonwealth of $8,000,000. Evidence showed that the contract could have
been performed in-house for $300,000 and that an accounting firm eventually
performed it for no more than $1,300,000. Id.
V.
15
Stoneman argues that the jury was instructed that it need not find any tangible
property loss to convict the defendants of mail fraud or conspiracy to commit
mail fraud and that this instruction was fundamental error entitling him to a
vacation of his sentence by issuance of a writ of error coram nobis. 8
16
After reviewing the jury instructions in their entirety, I believe that the district
court erred, under McNally, in instructing the jury that it could convict
Stoneman of mail fraud solely on an intangible rights theory. The court
charged:
17 object of the scheme need not be money or any form of tangible property. A
The
scheme to defraud the citizens of a governmental unit of the good and faithful
services of their employees and elected public officials can come within the meaning
of scheme or artifice to defraud as set forth in the mail fraud statute.
18
App. at 187. The mail fraud objective was alleged to be "a scheme to defraud
the citizens of the Commonwealth of Pennsylvania of the faithful services of
elected public officials and public employees by corruptly influencing them by
bribery." Id. at 224. The jury was not instructed that it had to find a scheme
designed to cause a tangible money or property loss to the Commonwealth of
Pennsylvania in order to convict the defendants. The district court also failed to
specifically refer to the money losses to the Commonwealth or state counties
caused by CTA's procurement of a no-bid contract.
19
I believe these jury instructions distinguish this case from those given in United
States v. Piccolo, 835 F.2d 517 (3d Cir.1987), cert. denied, --- U.S. ----, 108
S.Ct. 2014, 100 L.Ed.2d 602 (1988), and United States v. Asher, 854 F.2d 1483
(3d Cir.1988). In Piccolo, the jury was instructed that it must find that the
government proved that the defendant schemed to defraud the victims of both
their intangible " 'right to the honest, faithful and loyal services of its employees
... and further to defraud [the victims] of money.' " Piccolo, 835 F.2d at 520
(emphasis in original). Likewise, in Asher, which involved the same underlying
scheme to defraud the Commonwealth of Pennsylvania as in the present case,
the jury instructions made reference to both tangible and intangible losses to the
state. Asher, 854 F.2d at 1494, 1495. In Asher, the district court charged the
jury that it may find an intent on the part of the defendants to defraud "if it
finds that the defendants sought 'to deceive for the purpose of either causing
some financial loss to another, or losses of an intangible nature, or bringing
about financial gain to one's self, or for any of these purposes.' " Id. at 1495. In
describing the objects of the conspiracy to defraud, the court instructed that "
'[o]ne object involves a statutory right, and one object involves a property right.'
" Id. In conclusion, the Asher court instructed that:
20
"Where
the statutory duty of refraining from bribery is concerned, or if you find that
one of the objects of the conspiracy was to defraud of the tangible savings coming
from an impartially awarded contract, you do not have to consider the public official
defendant first, but may consider both defendants and find either one or the other, or
both, either guilty or innocent, as the facts indicate."
21
23
24
The indictment against Stoneman charged and the evidence the jury heard
established an offense within the meaning of Sec. 1341, as interpreted by the
Supreme Court in McNally. Stoneman did not suffer a conviction for conduct
that was not criminal. Accordingly, I believe he failed to meet the burden
imposed on him in a coram nobis proceeding of overcoming the presumption
that his conviction was valid. It is not enough for him to show that it may have
been invalid. This conclusion, I believe, properly balances the tension between
principles of finality and the law's ideal of seeing that no man is improperly
convicted. It also serves to distinguish the type of review available on direct
appeal from the less searching examination into trial error available on
collateral review through the more limited remedy of coram nobis.10 Finally, it
is not inconsistent with cases on direct appeal holding it is error to instruct a
jury that a mail fraud conviction under Sec. 1341 can be based solely on a
victim's loss of intangible rights. See, e.g., Zauber, 857 F.2d at 145.
VI.
25
In short, we hold that McNally is retroactive, that Stoneman has not shown
fundamental error and that he has not overcome the presumption that he was
properly convicted of mail fraud, a showing essential to the issuance of a writ of
error coram nobis.
26
Therefore we will affirm the district court's order denying Stoneman's petition
for a writ of error coram nobis.
Judges Becker and Scirica join Parts I-IV and Part VI of this opinion and with
respect to them it constitutes the Opinion of the Court. Part V only expresses
the views of the opinion writer
The district court relied on its earlier decision in United States v. Smith, 675
F.Supp. 978 (M.D.Pa.1987) in which it held that McNally did not apply
retroactively to a petition for a writ of habeas corpus under 28 U.S.C.A. Sec.
2255 (West 1971)
Osser held in part that a writ of error coram nobis was not available because the
appellant waived the issue by not raising it on direct appeal. Osser's appeal was
taken in 1972, well before the issue was resolved. See United States v. Boffa,
688 F.2d 919, 926 (3d Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1272,
75 L.Ed.2d 494 (1983). Such an argument is not available to the government
here
Federal Rule of Civil Procedure 60(b) abolished the writ of error coram nobis
in civil cases
If the indictment failed to allege a crime, then the district court would have
been without jurisdiction to enter judgment against the defendant
Stoneman argues that his entire conviction must be vacated, even though he
was also convicted of conspiring to violate the Travel Act. Because we
conclude that Stoneman's conviction is valid under McNally, we need not
address this argument
10