United States v. Brahms

746 F. Supp. 385, 1990 U.S. Dist. LEXIS 13296, 1990 WL 152311
CourtDistrict Court, S.D. New York
DecidedOctober 9, 1990
DocketNo. 80 Cr. 620 (CHT)
StatusPublished
Cited by2 cases

This text of 746 F. Supp. 385 (United States v. Brahms) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brahms, 746 F. Supp. 385, 1990 U.S. Dist. LEXIS 13296, 1990 WL 152311 (S.D.N.Y. 1990).

Opinion

OPINION

TENNEY, District Judge.

This case is before the court on defendant’s writ of error coram nobis, in which he seeks to vacate his guilty plea to tax fraud. For the reasons set forth below, the writ is denied.

[386]*386BACKGROUND

In 1980, a federal grand jury began an investigation into possible tax fraud by the owners of several discotheques in New York City. Maurice Brahms, the defendant in this action, was the owner of two such establishments, “New York, New York” and “Infinity.” Prior to the investigation, Brahms had retained a lawyer, the late Roy Cohn, to provide general legal services for his discotheque businesses. When the grand jury investigation began, Cohn was retained by Ian Schrager and Steve Rubell, the owners of the discotheque “Studio 54,” who had become targets of the investigation. When Brahms learned that he was also a target, he retained another attorney, James LaRossa, to represent him.

Brahms eventually waived indictment and pleaded guilty to two counts of tax fraud. He did not file any motions prior to entry of his plea; he swore to all facts and waivers at the time of the plea, as required by Federal Rule of Criminal Procedure 11; and he did not appeal his conviction. He also admitted that he had concealed $1,066,-449 in income from the United States, with a tax due and owing of $670,095. The court sentenced him to three years in prison, three years’ probation and a fine of $20,000.

In this motion, Brahms asserts several grounds for invalidating his plea, only one of which merits discussion. Essentially, he contends that Cohn violated his attorney-client relationship with Brahms by supplying the Government with privileged and incriminating information about Brahms’ activities. Brahms claims that Cohn did this to gain more favorable treatment for Cohn’s other clients, Rubell and Schrager. According to Brahms, the Government used this information to obtain a search warrant that was executed at his home, netting much of the evidence against him. Brahms maintains that Cohn's alleged misconduct provided grounds to have the evidence suppressed. He claims, however, that he elected not to pursue the issue and decided to plead guilty after receiving threats from Cohn, through an intermediary, warning him that his family would be harmed if he challenged.

DISCUSSION

Under Federal Rule of Criminal Procedure 12(f), “[fjailure by a party to raise defenses or objections or to make requests which must be made prior to trial ... shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.” Therefore, absent good cause, the failure to challenge a search warrant before pleading guilty ordinarily bars any consideration of the merits of such a challenge in a collateral attack on the judgment of conviction. See Davis v. United States, 411 U.S. 233, 242, 93 S.Ct. 1577, 1583, 36 L.Ed.2d 216 (1973); Indiviglio v. United States, 612 F.2d 624, 630 (2d Cir.1979), cert. denied, 445 U.S. 933, 100 S.Ct. 1326, 63 L.Ed.2d 768 (1980). Standing alone, Brahms’ allegations would establish a colorable argument for good cause and, were they presented in a habeas petition, might compel the court to hold an eviden-tiary hearing, or to require the Government to respond to Brahms’ contentions with appropriate affidavits. See Blackledge v. Allison, 431 U.S. 63, 80 & n. 21, 82-83 & n. 25, 97 S.Ct. 1621, 1632 & n. 21, 1633-34 & n. 25, 52 L.Ed.2d 136 (1977).

Nevertheless, Brahms has asserted his claims in a petition for writ of error coram nobis because he has fully completed his sentence and does not face the potential loss of liberty required to bring a habeas petition under 28 U.S.C. § 2255 (1988). The Supreme Court has noted that the “[continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through [the] extraordinary remedy [of writ of error coram nobis] 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); see also Blackledge, 431 U.S. at 83, 97 S.Ct. at 1632 (Powell, J. concurring) (noting the importance of finality to a system of justice). Therefore, in contrast to the weight that it must accord allegations in a habeas petition, the court [387]*387may consider the previous proceedings of the case underlying a coram nobis action and reject those contentions in the petition that, in its judgment, are palpably implausible in light of the competent evidence already in the record. See Bruno v. United States, 474 F.2d 1261, 1263 (8th Cir.1973); see also Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 514, 7 L.Ed.2d 473 (1962) (“The language of [section 2255] does not strip the district courts of all discretion to exercise their common sense.”); Dalli v. United States, 491 F.2d 758, 762 n. 6 (2d Cir.1974) (same). If the interests of justice would best be served by doing so, it may summarily deny relief without an evidentiary hearing. See Bruno, 474 F.2d at 1263.

The justification for examining the entire record results, in part, from a recognition that the interests involved in a cor-am nobis action are, as in this case, usually less significant than the liberty interests implicated in a habeas petition. Indeed, Brahms claims only that he has reentered the nightclub business and that his conviction prevents him from procuring a liquor license. He also claims that he cannot obtain a real estate license and that his permit to carry a firearm has been revoked. Although these, and the general stigma associated with a criminal conviction, are obviously important considerations to Brahms, they do not rise to the level of the liberty interests at stake in a habeas petition.

Moreover, Brahms contends only that he was denied the right to challenge the validity of the search warrant that provided the evidence against him. Such claims “do not ‘impugn the integrity of the fact-finding process or challenge evidence as inherently unreliable; rather, the exclusion of illegally seized evidence is simply a prophylactic device intended generally to deter Fourth Amendment violations by law enforcement officers.’ ” Stone v. Powell, 428 U.S. 465, 479, 96 S.Ct. 3037, 3045, 49 L.Ed.2d 1067 (1976) (quoting Kaufman v. United States, 394 U.S. 217, 224, 89 S.Ct. 1068, 1073, 22 L.Ed.2d 227 (1969)).

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Bluebook (online)
746 F. Supp. 385, 1990 U.S. Dist. LEXIS 13296, 1990 WL 152311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brahms-nysd-1990.