United States Court of Appeals For the First Circuit
No. 11-1815
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD J. GEORGE,
Petitioner, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Selya and Stahl, Circuit Judges.
Bruce T. Macdonald for appellant. S. Theodore Merritt, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
April 17, 2012 SELYA, Circuit Judge. A Hail Mary pass in American
football is a long forward pass made in desperation at the end of
a game, with only a small chance of success. The writ of error
coram nobis is its criminal-law equivalent. This appeal requires
us to explore the intricacies of the writ, sift through the
considerations that inform a determination to unleash that
extraordinary remedy, and assess the extent to which discretion can
influence a reviewing court's decision about coram nobis relief.
We conclude that a flexible, common-sense approach to coram nobis
relief is warranted and that, in the last analysis, we have
discretion to withhold the remedy where the interests of justice so
dictate. Applying this principle to the case at hand, we affirm
the district court's denial of the writ.
I. BACKGROUND
From 1975 to 1995, petitioner-appellant Richard George
served as a first assistant clerk-magistrate of a Massachusetts
state court. In that capacity, he performed an array of
administrative tasks central to the court's operation, including
the issuance of search warrants.
In December of 1995, the government filed a one-count
information charging the petitioner with participation in a
conspiracy to commit honest-services wire fraud. See 18 U.S.C.
§§ 371, 1343, 1346. The information averred that the petitioner
had conspired to "participate in a scheme to defraud the
-2- Commonwealth of Massachusetts of the intangible right of [his]
honest services . . ., and to cause the use of wire communications
in execution of this scheme." In support, the information stated
that the petitioner surreptitiously delivered blank search warrants
to one Michael Fosher, knowing that Fosher had no legitimate use
for them. Wire fraud came into play because Fosher had made at
least one interstate telephone call to the petitioner in
furtherance of the scheme.
The petitioner waived indictment, and the parties
immediately entered into a binding C-type plea agreement. See Fed.
R. Crim. P. 11(c)(1)(C). The agreement contemplated that the
petitioner would plead guilty to the information and that his
sentence would entail twenty months of imprisonment, a $10,000
fine, the standard $50 special assessment, and two years of
supervised release.
The recitals contained in the plea agreement and
presentence investigation report shed further light on the
underlying events. Those recitals made pellucid that Fosher and
several confederates had used the improperly obtained search
warrants to mount a series of robberies. For example, they would
pose as law enforcement officers executing a warrant, enter a drug
dealer's home, and abscond with his drugs and money. By the time
that the petitioner signed the plea agreement, nearly all of the
-3- other miscreants involved in the scheme had pleaded guilty to
federal charges.
The district court accepted the plea and sentenced the
petitioner in accordance with the plea agreement. The petitioner
did not appeal, nor did he at any time seek habeas relief. See 28
U.S.C. § 2255. Rather, he served his incarcerative term, paid the
fine and special assessment, and completed two years of supervised
release on April 23, 1999.
The petitioner retired from state service prior to the
entry of his guilty plea, and on October 1, 1995, he began
receiving a monthly retirement stipend of $1,424.91, together with
lifetime health-care coverage. Those benefits continued throughout
his immurement and beyond. But in January of 2003, the state
retirement board (the Board) suspended his retirement benefits due
to his federal conviction. This decision was especially
disconcerting to the petitioner because the anticipated flow of
retirement benefits had been part and parcel of his plea bargain
strategy; his attorney had advised him that he would remain
eligible for his vested retirement benefits as long as he started
receiving them before he entered a guilty plea.
On October 29, 2004, the petitioner filed his first
petition for a writ of error coram nobis. He argued that his
conviction suffered from a fundamental defect in that the
government had failed to allege facts establishing all the elements
-4- of the offense of conviction. The district court denied the
petition, finding no fundamental defect in the conviction. United
States v. George, 436 F. Supp. 2d 274, 277-79 (D. Mass. 2006). On
May 11, 2007, we summarily affirmed that ruling. See United States
v. George, No. 06-2010 (1st Cir. May 11, 2007) (unpublished).
Shortly thereafter, the Board permanently revoked the petitioner's
pension and authorized the institution of proceedings to recoup
benefits paid in excess of the petitioner's aggregate contributions
to the retirement system.1
In 2010, the Supreme Court truncated the reach of the
statute proscribing honest-services fraud. See Skilling v. United
States, 130 S. Ct. 2896, 2928-34 (2010). The Court held that the
"intangible right of honest services," set out in 18 U.S.C. § 1346,
would be unconstitutionally vague unless it was limited to schemes
to defraud that involve bribes or kickbacks. Id. at 2933-34.
Because the government had failed to show that Skilling had engaged
in conduct involving bribery or kickbacks, the Court determined
that he "did not commit honest-services fraud." Id. at 2934.
As said, the petitioner had pleaded guilty to an
information that charged conspiracy to commit honest-services wire
fraud. The information did not contain any mention of bribes or
1 At the time of his retirement, the petitioner had $65,521.56 in his retirement account. By the time that the Board halted pension payments, the Commonwealth had paid him $114,503.25. The record is silent as to the efficacy of any recoupment efforts.
-5- kickbacks. The petitioner seized on the Skilling decision and
filed his second petition for a writ of error coram nobis. In this
petition, he insisted that, under Skilling, there was a fundamental
error in his conviction.
The district court denied the petition. United States v.
George, No. 95-10355, 2011 WL 2632321, at *4 (D. Mass. June 30,
2011). It analyzed the petitioner's claim through the prism of a
tripartite test requiring a petitioner to "1) explain h[is] failure
to seek relief from judgment earlier, 2) demonstrate continuing
collateral consequences from the conviction, and 3) prove that the
error is fundamental to the validity of the judgment." United
States v. Sawyer, 239 F.3d 31, 38 (1st Cir. 2001). The court found
the timeliness requirement satisfied and agreed with the petitioner
that, in light of Skilling, a fundamental error had occurred. See
George, 2011 WL 2632321, at *2. Nevertheless, the court determined
that the cessation of the petitioner's retirement benefits did not
constitute a continuing collateral consequence sufficient to
justify the extraordinary remedy sought. Id. at *2-3 (citing
United States v. Craig, 907 F.2d 653, 660 (7th Cir. 1990)).
Consequently, it denied coram nobis relief. This timely appeal
followed.
-6- II. ANALYSIS
This appeal requires us to revisit the tripartite test
that we have used in the past for coram nobis cases. We start by
explicating the applicable law and then proceed to the merits.
A. The Legal Landscape.
The writ of error coram nobis is of ancient lineage,
tracing its roots to sixteenth century English common law. See
Sawyer, 239 F.3d at 37. Its original purpose was to promote
respect for the judicial process by enabling a court to correct
technical errors in a final judgment previously rendered. See
United States v. Denedo, 129 S. Ct. 2213, 2220 (2009). In the
United States, the office of the writ has expanded well beyond the
reopening of a final judgment to correct technical errors. See id.
In federal criminal cases, the writ is now available as a remedy of
last resort for the correction of fundamental errors of fact or
law. Trenkler v. United States, 536 F.3d 85, 93 (1st Cir. 2008).
The authority to grant coram nobis relief derives from
the All Writs Act, 28 U.S.C. § 1651(a), which empowers federal
courts to "issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles
of law." There is a generally accepted understanding that the All
Writs Act imbues courts with flexible, see Sprint Spectrum L.P. v.
Mills, 283 F.3d 404, 413 (2d Cir. 2002), inherently equitable, see
Clinton v. Goldsmith, 526 U.S. 529, 537 (1999), powers. These
-7- powers are anchored in informed judicial discretion. See Roche v.
Evap'd Milk Ass'n, 319 U.S. 21, 25-26 (1943); In re Cargill, Inc.,
66 F.3d 1256, 1260 (1st Cir. 1995); Paramount Film Distrib. Corp.
v. Civic Ctr. Theatre, Inc., 333 F.2d 358, 360 (10th Cir. 1964).
An emphasis on restraint is ingrained: the extraordinary nature of
the writs implies that they should be issued sparingly. See In re
Cargill, 66 F.3d at 1259; In re Sch. Asbestos Litig., 977 F.2d 764,
772 (3d Cir. 1992).
The metes and bounds of the writ of coram nobis are
poorly defined and the Supreme Court has not developed an easily
readable roadmap for its issuance. See Denedo, 129 S. Ct. at 2220.
But the Court has indicated that caution is advisable and that
"[c]ontinuation of litigation after final judgment . . . should be
allowed through this extraordinary remedy only under circumstances
compelling such action to achieve justice." United States v.
Morgan, 346 U.S. 502, 511 (1954). This emphasis on the interests
of justice is entirely consistent with the provenance and usage of
extraordinary writs generally. See, e.g., Bracy v. Gramley, 520
U.S. 899, 904 (1997); Burr & Forman v. Blair, 470 F.3d 1019, 1026
(11th Cir. 2006); Hartley Pen Co. v. U.S. Dist. Court, 287 F.2d
324, 328 (9th Cir. 1961).
The Supreme Court has always envisioned coram nobis as
strong medicine, not profligately to be dispensed. On the few
occasions post-Morgan that the Court has commented on coram nobis,
-8- the Justices have stressed that there will rarely be situations
warranting the deployment of the writ. See, e.g., Denedo, 129 S.
Ct. at 2220 (remarking on the importance of limiting the writ to
truly extraordinary circumstances "so that finality is not at risk
in a great number of cases"); Carlisle v. United States, 517 U.S.
416, 429 (1996) (noting that "it is difficult to conceive of a
situation in a federal criminal case today where a writ of coram
nobis would be necessary or appropriate" (alterations and internal
quotation marks omitted)).
Given the Court's evident concerns, it is not surprising
that successful petitions for coram nobis are hen's-teeth rare.
Consequently, the courts of appeals have not yet developed anything
resembling a uniform approach to such relief.
In this circuit, we have formulated a tripartite test to
help guide our decisionmaking. Under it, a coram nobis petitioner
must explain his failure to seek earlier relief from the judgment,
show that he continues to suffer significant collateral
consequences from the judgment, and demonstrate that the judgment
resulted from an error of the most fundamental character. See
United States v. Barrett, 178 F.3d 34, 56 n.20 (1st Cir. 1999);
Hager v. United States, 993 F.2d 4, 5 (1st Cir. 1993) (Breyer,
C.J.). Other courts of appeals have enumerated comparable
requirements. See, e.g., United States v. Sloan, 505 F.3d 685, 697
(7th Cir. 2007); United States v. Mandanici, 205 F.3d 519, 524 (2d
-9- Cir. 2000); United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir.
1989).
Beyond these generalities, the case law has been uneven.
For example, several courts have indicated that something more than
the stain of conviction is needed to show continuing collateral
consequences. See, e.g., Fleming v. United States, 146 F.3d 88,
90-91 & n.3 (2d Cir. 1998) (per curiam); United States v. Dyer, 136
F.3d 417, 429-30 & n.33 (5th Cir. 1998); Hager, 993 F.2d at 5;
United States v. Osser, 864 F.2d 1056, 1059-60 (3d Cir. 1988); see
also United States v. Keane, 852 F.2d 199, 203 (7th Cir. 1988)
(holding that continuing collateral consequences arise only in
situations where the disability is unique to a criminal
conviction). Other courts have indicated that continuing
collateral consequences invariably flow from a felony conviction
alone. See, e.g., United States v. Peter, 310 F.3d 709, 715-16
(11th Cir. 2002) (per curiam); Walgren, 885 F.2d at 1421; United
States v. Mandel, 862 F.2d 1067, 1075 & n.12 (4th Cir. 1988). Yet
another court has granted coram nobis relief without mentioning the
requirement. See Allen v. United States, 867 F.2d 969, 971-72 (6th
Cir. 1989).
The dispute over the collateral consequences requirement
is emblematic of a more general lack of jurisprudential uniformity.
For instance, the courts of appeals typically place varying levels
of emphasis on other factors. When it is alleged that a federal
-10- criminal statute does not reach certain conduct, some courts focus
narrowly on whether the record still sets out a crime, see, e.g.,
Peter, 310 F.3d at 711-16; Allen, 867 F.2d at 971-72, whereas other
courts focus on a wider universe, including whether the petitioner
had exhausted his rights to appeal, see, e.g., Osser, 864 F.2d at
1060-62; United States v. Travers, 514 F.2d 1171, 1176-79 (2d Cir.
1974) (Friendly, J.), and the interest of finality, see, e.g.,
Craig, 907 F.2d at 658; Osser, 864 F.2d at 1059.
Despite the myriad approaches that courts have taken, we
think there is a bellwether principle: "each attempted use of an
extraordinary writ in connection with post-conviction relief must
be judged on its own merits." Trenkler, 536 F.3d at 97. This is
especially true of coram nobis. A case-by-case approach is
preferable, with each decision about whether to grant or deny the
writ ultimately residing in the court’s sound discretion. It
follows that the tripartite test should not be administered
mechanically but, rather, in a flexible, common-sense manner. Even
if the test is satisfied, the court retains discretion over the
ultimate decision to grant or deny the writ. In other words,
passing the tripartite test is a necessary, but not a sufficient,
condition for the issuance of the writ. Additional circumstances,
not readily susceptible to facile categorization, may provide
adequate reason for a court, in the exercise of its discretion, to
-11- stay its hand. See In re Cargill, 66 F.3d at 1260; In re Sch.
Asbestos Litig., 977 F.2d at 772.
The bottom line is that a writ of error coram nobis
should issue "only under circumstances compelling such action to
achieve justice." Morgan, 346 U.S. at 511. The devoir of
persuasion is on the petitioner: if he fails to convince the court
that the ends of justice will be served by granting such
extraordinary relief, the court may refrain from upsetting a
conviction that has long since become final.
Our emphasis on discretion treads a well-worn path. In
its seminal coram nobis decision the Supreme Court noted that the
writ may issue to correct factual errors only in "those cases where
the errors were of the most fundamental character; that is, such as
rendered the proceeding itself irregular or invalid." United
States v. Mayer, 235 U.S. 55, 69 (1914). The Morgan Court
reiterated this standard and added the caveat that the writ should
issue "only under circumstances compelling such action to achieve
justice." 346 U.S. at 511 (emphasis supplied). Consequently, it
is not enough for a coram nobis petitioner to show that he can
satisfy the elements of the tripartite test: he must also show that
justice demands the extraordinary balm of coram nobis relief. See
Hager, 993 F.2d at 5 (explaining that courts will use the writ of
error coram nobis "to set aside a criminal judgment only under
circumstances compelling such action to achieve justice" (internal
-12- quotation marks omitted)); see also Barrett, 178 F.3d at 56 n.20;
Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996).
B. The Merits.
Against this backdrop we turn to the merits. The court
below rested its denial of the writ on a finding that the
petitioner failed to show sufficient continuing collateral
consequences stemming from his conviction. See George, 2011 WL
2632321, at *2-3.
The petitioner's most aggressive attack on this finding
is that the continuing collateral consequences requirement is not
a requirement at all. In his view, the insistence on such a
showing results from a misreading of the Supreme Court's opinion in
Morgan. He insists that we should find the stain of a felony
conviction itself sufficient to supplant any need for a further
showing of continuing collateral consequences.
It is settled law in this circuit that the continuing
collateral consequences requirement is part of the analytic
framework that pertains in coram nobis cases. See, e.g., Sawyer,
239 F.3d at 38; Hager, 993 F.2d at 5. Although we have not
explicitly set out what comprises a continuing collateral
consequence, we have clearly indicated that a conviction alone is
not enough. See Hager, 993 F.2d at 5.2 The petitioner's
2 In United States v. Michaud, 925 F.2d 37, 39 n.1 (1st Cir. 1991), we declined to address this point. Instead, we noted that a contempt citation entered against the petitioner "for failure to
-13- invitation that we scuttle this requirement runs contrary to the
well-settled tenet that newly constituted panels in a multi-panel
circuit are, with isthmian exceptions not pertinent here, bound by
prior on-point circuit precedent. See San Juan Cable LLC v. P.R.
Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010); United States v. Wogan,
938 F.2d 1446, 1449 (1st Cir. 1991). We therefore decline the
petitioner's invitation.
The petitioner's next argument is that the loss of his
monthly pension benefits should be considered a continuing
collateral consequence. We need not grapple with this argument.
Even assuming arguendo that the continuing collateral consequences
requirement has been satisfied,3 he nonetheless has failed to
pay a $60,000 fine levied as part of his sentence" would satisfy any continuing collateral consequences requirement. Id. Nevertheless, our statement two years later in Hager, 993 F.2d at 5, that the appellant has not "shown significant, continuing collateral consequences flowing from his conviction," plainly indicates that more than the mere fact of a conviction is required. 3 The answer to this question is not clear. The petitioner's ongoing loss of monthly pension benefits, together with health-care coverage, may satisfy one piece of the continuing collateral consequences requirement, see Osser, 864 F.2d at 1060 (assuming that loss of pension benefits is a continuing collateral consequence), but such a conclusion is not foregone, see Craig, 907 F.2d at 660 (holding that "removal from [a] pension plan is a sunk cost, much like a criminal fine"). In all events, there is a second piece of the continuing collateral consequences requirement: it must be shown that the court's decree will eliminate the claimed collateral consequence and bring about the relief sought. See United States v. Bush, 888 F.2d 1145, 1149 (7th Cir. 1989). The record here offers no compelling reason to believe that vacating the petitioner's conviction would automatically restore his retirement benefits.
-14- persuade us that the circumstances of his case demand coram nobis
relief. We elaborate below.
At the outset, we pause to clarify the standard of
review. In coram nobis cases, we afford de novo review to the
district court's legal conclusions and clear-error review to its
findings of fact. Sawyer, 239 F.3d at 36. The court below did not
conduct an evidentiary hearing and denied the writ as a matter of
law. Thus, our review here is plenary.
In this court, the government does not challenge the
district court's assumption that a fundamental error occurred.
This tacit concession poses no barrier to our full consideration of
this issue. See United States v. Borrero-Acevedo, 533 F.3d 11, 15
n.3 (1st Cir. 2008) (explaining that "[t]his court is not bound by
[the government's] concessions" in a criminal case). Our inquiry
into the fundamental error requirement therefore reduces to whether
the petitioner has demonstrated "an error of 'the most fundamental
character.'" Hager, 993 F.2d at 5 (quoting Morgan, 346 U.S. at
512).
The petitioner's conviction resulted from a guilty plea.
Undeniable advantages, such as limiting exposure to punishment,
flowed from this decision. The flip side is that (with limited
exceptions not applicable here) the unconditional guilty plea
waived virtually all objections and defenses for purposes of direct
appeal. See United States v. González-Mercado, 402 F.3d 294, 298
-15- (1st Cir. 2005); United States v. González, 311 F.3d 440, 442 (1st
Cir. 2002). The petitioner could have challenged the legal
definition of honest-services fraud then and there but waived that
right by opting instead to enter into a plea bargain. This
decision alone counts against finding an error of the most
fundamental character. Cf. Osser, 864 F.2d at 1060-62 (stating
that the appellant could not raise in his coram nobis petition an
argument that he failed to raise on direct appeal); Travers, 514
F.2d at 1177 (Friendly, J.) (limiting its decision to grant coram
nobis relief "to defendants who . . . had gone through the full
appellate process").
The interest of finality, always important in criminal
cases, is of heightened concern when a conviction arises from a
guilty plea. See Bousley v. United States, 523 U.S. 614, 621
(1998); Blackledge v. Allison, 431 U.S. 63, 71-72 (1977). While
constitutional questions about whether the plea was knowing and
intelligent may be susceptible to review, see United States v.
Jimenez, 512 F.3d 1, 3-4 (1st Cir. 2007); United States v. Gandia-
Maysonet, 227 F.3d 1, 3 (1st Cir. 2000), even those questions, if
not raised below, are subject only to plain-error review. See
Jimenez, 512 F.3d at 3-4. Such review is largely a matter of
discretion. See United States v. Olano, 507 U.S. 725, 735-36
(1993); United States v. Kinsella, 622 F.3d 75, 83 (1st Cir. 2010).
-16- The limitations on collateral attacks of guilty pleas are
even greater. See Bousley, 523 U.S. at 621-24. These limitations
are most familiarly associated with attempts to secure habeas
corpus relief. When a defendant seeks to vacate a guilty-plea
conviction by way of coram nobis, great caution is warranted.
Because custody no longer attaches and liberty is no longer at
stake, an inquiring court should pay particular attention to
whether there is "some . . . basis for thinking that the defendant
is at least arguably guilty." Gandia-Maysonet, 227 F.3d at 6.
In response to the petitioner's original coram nobis
petition, the district court plausibly determined that a factual
basis existed for the conspiracy conviction. George, 436 F. Supp.
2d at 277-79. The petitioner now resurrects this same argument in
light of Skilling, contending that he stands convicted of an
offense that is not criminal. But Skilling did not invalidate the
definition limned in 18 U.S.C. § 1346 ("[T]he term 'scheme or
artifice to defraud' includes a scheme or artifice to deprive
another of the intangible right of honest services."); it merely
clarified that prosecutions under statutes incorporating that
definition require evidence of bribes or kickbacks. 130 S. Ct. at
2933-34.
Viewed from this perspective, the petitioner's argument
is very narrow. He does not say that no bribes or kickbacks
occurred; he merely says that the record before us contains no such
-17- evidence. He does nothing to dispel the obvious concern that the
conspiracy in which he was involved may have entailed conduct still
criminal under Skilling.
This narrow argument overlooks the reality that the
factual insufficiency about which the petitioner complains may well
have resulted from his own decision to minimize his exposure and
plead guilty as soon as practicable. Had he put the government to
its burden at trial, a substantially more robust factual record
would doubtless have been developed. Having secured a plea, it may
well have been the best use of the government's finite
prosecutorial resources to put limited effort into establishing
anything more than the bare elements of the plea-bargained crime.
This is even more probable because the petitioner's prosecution
came after most of the other coconspirators had entered guilty
pleas.
To be sure, the record in this case contains no direct
evidence of bribes.4 At most, however, the question of whether or
not bribes took place remains unresolved. The record makes
manifest that the petitioner passed out search warrants like
popsicles in July to a person whom he knew had no legitimate use
for them. Common sense strongly suggests that the petitioner — who
risked his reputation, his job, and his liberty by conspiring with
4 Although we acknowledge that Skilling requires either bribes or kickbacks, for ease in exposition we limit our subsequent discussion to bribes.
-18- Fosher — must have received some sort of emolument to make his
trouble worthwhile. The law does not require a court to blind
itself to the obvious, and it would be tooth-fairy odd for the
petitioner to have handed out blank warrants in the absence of a
quid pro quo. In these uncertain circumstances, a Skilling error
cannot readily be classified as an error of the most fundamental
character.
Words have meaning, and an error "of the most fundamental
character," Morgan, 346 U.S. at 512 (internal quotation marks
omitted), must denote something more than an error simpliciter. At
the very least, the error must be more than a factual insufficiency
that the petitioner's voluntary decisions may have caused.
Such reasoning has special force where, as here, a
challenger is asking us to defenestrate a judgment that became
final long ago. See Denedo, 129 S. Ct. at 2223 (explaining that
"judgment finality is not to be lightly cast aside; and courts must
be cautious so that the extraordinary remedy of coram nobis issues
only in extreme cases"); Trenkler, 536 F.3d at 100 (similar). The
further a case progresses through the remedial steps available to
a criminal defendant, the stiffer the requirements for vacating a
final judgment. Thus, direct review is more defendant-friendly
than post-judgment review, see United States v. Frady, 456 U.S.
152, 165-66 (1982), and an initial habeas petition is easier for a
criminal defendant to litigate than a successive one, see Trenkler,
-19- 536 F.3d at 100. The writ of error coram nobis lies at the far end
of this continuum. Logically, then, when a defendant seeks to
vacate a guilty-plea conviction by way of coram nobis, red flags
accompany that request. Cf. Denedo, 129 S. Ct. at 2220
(admonishing that coram nobis relief should be cabined "so that
finality is not a risk in a great number of cases").
This brings the matter of our discretion front and
center. The petitioner here has not persuaded us that the
circumstances of this case warrant an affirmative exercise of that
discretion. The petitioner's strategic decisions (his waiver of
indictment, his immediate entry into a plea agreement, and his
eschewal of both direct review and habeas review) have stifled the
development of a full record, and common sense argues powerfully
that culpable conduct likely took place. The petitioner has made
the narrowest of arguments and has done nothing to dispel this
inference.
Each request for a writ of error coram nobis must be
judged on its own facts. Even if we assume for argument's sake
that the petitioner has satisfied the tripartite test, we know of
no binding authority that would compel us, when making an
essentially equitable determination regarding the appropriateness
of extraordinary relief, to grant coram nobis. When all is said
and done, issuing or denying a writ of error coram nobis must hinge
on what is most compatible with the interests of justice, see id.;
-20- Morgan, 346 U.S. at 511, and our discretion must be guided by that
inquiry.
We think that the reasons why we decline to exercise our
discretion favorably to the petitioner are apparent. It is
difficult to understate either the wrongfulness or the criminal
character of what the petitioner himself admits to having done.
That conduct comprises a clear violation of his obligations under
the oath taken by him as an official of the Massachusetts court
system. The conduct — handing over blank warrants for improper
purposes on at least two separate occasions — also comprises a
brazen and reprehensible misuse of his official authority. It in
all likelihood violated a number of state criminal statutes, and it
also violated the federal fraud statute as its honest services
component was understood at the time (even if one further likely
fact — the bribe — was not included in the plea agreement and
colloquy because not then deemed necessary). Granting relief in
these circumstances would be both a misuse of our authority under
the All Writs Act and a perversion of the writ of error coram
nobis. In the end, the writ is designed to do justice, not to
facilitate a miscarriage of justice.
The petitioner has a fallback position. He strives to
convince us that because Skilling, 130 S. Ct. at 2933-34, requires
proof of bribes or kickbacks for honest-services fraud, and the
information to which he pleaded includes no such allegation, the
-21- district court was without jurisdiction to accept his plea. We are
not persuaded.
Subject matter jurisdiction refers to a court's power,
whether constitutional or statutory, to adjudicate a case. United
States v. Cotton, 535 U.S. 625, 630 (2002). Congress has given
federal district courts original jurisdiction over "all offenses
against the laws of the United States." 18 U.S.C. § 3231. Thus,
if an indictment or information alleges the violation of a crime
set out "in Title 18 or in one of the other statutes defining
federal crimes," that is the end of the jurisdictional inquiry.
González, 311 F.3d at 442; see Hugi v. United States, 164 F.3d 378,
380 (7th Cir. 1999).
Although jurisdiction in the federal criminal context
lends itself to straightforward analysis, courts sometimes have
used the term colloquially. Such usages have caused some
confusion. See Eberhart v. United States, 546 U.S. 12, 13-19
(2005) (per curiam); Cotton, 535 U.S. at 630-31. Indeed, this
"less than meticulous" practice, Eberhart, 546 U.S. at 16, has
given the word "jurisdiction" a "chameleon-like quality," Prou v.
United States, 199 F.3d 37, 45-46 (1st Cir. 1999).
The case on which the petitioner principally relies in
support of his jurisdictional argument is a paradigmatic example of
this phenomenon. In United States v. Rosa-Ortiz, 348 F.3d 33, 36
(1st Cir. 2003), we stated that a district court "lacks
-22- jurisdiction to enter a judgment of conviction when the indictment
charges no offense under federal law." The petitioner seizes upon
this language.
Rosa-Ortiz cannot carry the weight that the petitioner
loads upon it. That opinion dealt with an instance in which the
indictment was factually insufficient. Id. at 36-42. Supreme
Court precedent makes transparently clear that an indictment's
factual insufficiency does not deprive a federal court of subject
matter jurisdiction. See Cotton, 535 U.S. at 630-31; Lamar v.
United States, 240 U.S. 60, 64-65 (1916) (Holmes, J). "[A]
district court has jurisdiction of all crimes cognizable under the
authority of the United States[,] and the objection that the
indictment does not charge a crime against the United States goes
only to the merits of the case." Cotton, 535 U.S. at 630-31
(quoting Lamar, 240 U.S. at 65) (alterations and internal quotation
marks omitted); accord Vanwinkle v. United States, 645 F.3d 365,
369 (6th Cir. 2011); United States v. Todd, 521 F.3d 891, 894-95
(8th Cir. 2008); United States v. Delgado-Garcia, 374 F.3d 1337,
1341-42 (D.C. Cir. 2004). Viewed in this light, the Rosa-Ortiz
court's statement must be regarded as an awkward locution. That
locution used the word "jurisdiction" to refer to what the court
considered a non-waivable defect, see United States v. Ceballos,
302 F.3d 679, 691-92 (7th Cir. 2002), not to the district court's
power to adjudicate the case.
-23- The bottom line is that Skilling has little or nothing to
do with the jurisdictional inquiry. The opinion in Skilling merely
clarifies that to convict someone of honest-services fraud, a
factual showing of bribery or kickbacks is compulsory. While this
holding rendered the instant information factually insufficient,
see Skilling, 130 S. Ct. at 2933-34, it did not divest the district
court of subject matter jurisdiction over the case. See Cotton,
535 U.S. at 631; Lamar, 240 U.S. at 64-65; González-Mercado, 402
F.3d at 300-01.
III. CONCLUSION
We need go no further. In a coram nobis case, the
ultimate question is whether the circumstances favor granting the
writ in order to achieve justice. See Morgan, 346 U.S. at 511.
When it appears questionable that an error of the most fundamental
character has transpired and it seems dubious that granting the
writ will promote the interests of justice, a federal court should
decline to exercise its discretion so as to disturb a judgment that
has long since become final. So it is here.
Affirmed.
-24-