United States v. Dyer

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 96-30545

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

T. WINDLE DYER,

Defendant-Appellant.

Appeal from the United States District Court for the
Eastern District of Louisiana

February 27, 1998

Before GARWOOD, DUHÉ and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant T. Windle Dyer (Dyer) appeals the district

court’s denial of his petition for a writ of coram nobis,

challenging his 1984 guilty plea conviction for mail fraud contrary

to 18 U.S.C. § 1341. We affirm.

Facts and Proceedings Below

On December 2, 1982, a federal grand jury returned a one-count

indictment charging Dyer with extortion under the Hobbs Act, 18

U.S.C. § 1951. The indictment alleged that Dyer had extorted a

payment of $25,000 as well as a financing commitment from a local

real estate developer and banker. According to the indictment,

Dyer had induced the unnamed victim to make a $25,000 payment and
to provide a letter of commitment to finance "Algiers Point," a

development project proposed by Dyer. The indictment further

alleged that this had been done "by the wrongful use of fear of

economic loss and under color of official right." The gist of the

alleged extortion was that Dyer used his position on the New

Orleans City Planning Commission, as well as his purported

influence with certain members of the New Orleans City Council, to

extort money and a letter of commitment for Algiers Point by

threatening to cause the City Council to reverse approval of the La

Maison Charles project. Although the victim was not referred to by

name in the indictment, the evidence before the grand jury

reflected that Guy Olano (Olano), the developer behind the La

Maison Charles project and chairman of the board at a local bank,

was the alleged victim of Dyer’s extortion.

In April of 1982, Olano and his partners had petitioned the

City Council for a conditional zoning ordinance amendment to allow

construction of the La Maison Charles timeshare project in New

Orleans. After a public hearing on the matter, the Planning

Commission unanimously voted at a meeting held on June 16, 1982,

not to recommend Olano’s proposal to the City Council. The June 16

vote occurred shortly before Dyer became a City Planning

Commissioner. Soon thereafter, Dyer and Olano became acquainted

and began negotiations regarding Olano’s possible participation in

the Algiers Point project, for which Dyer sought financing.

On July 21, 1982, Dyer attended his first Planning Commission

meeting in his official capacity. At this meeting, the Commission

2
reconsidered the La Maison Charles proposal and, with Dyer voting,

reversed its earlier decision and resolved to favorably recommend

the proposal to the City Council. On August 5, 1982, the proposal

was brought before the City Council, which approved it.

During this time, Dyer repeatedly told Olano that he had used

his influence (and vote) as a City Planning Commissioner to assist

passage of the La Maison Charles proposal. He also claimed to have

used his influence to ensure a favorable vote in the City Council,

and to have expended approximately $25,000 in doing so.

Additionally, Dyer continued to negotiate with Olano, seeking to

obtain financing from Olano that would allow him to buy out his

current partner in the Algiers Point project, Charles Wall.1

In the ensuing months, Dyer allegedly began to demand

"reimbursement" from Olano for the $25,000 that he claimed to have

spent in influencing the votes on the La Maison Charles proposal.

Dyer also allegedly began to pressure Olano to enter into a final

agreement regarding the financing for his Algiers Point project.

On November 2, 1982, Olano executed a letter of commitment for

financing the Algiers Point project. The financing agreement

anticipated the payment of an annual "management fee" to Dyer of

$100,000. Dyer claimed that the $25,000 reimbursement that he

requested was solely for the "out-of-pocket" expenses he had

actually incurred in "lobbying" for approval of Olano’s La Maison

1

Olano was chairman of the board of directors of Alliance Federal
Savings and Loan Association in Kenner, Louisiana, and,
consequently was believed to be in a position to obtain financing
for the project.

3
Charles project. Dyer also told Olano that he did not need any

additional cash for himself, stating that Olano could "take care of

him" both by means of the $100,000 management fee that was part of

the financing deal for Algiers Point and by providing the financing

itself.

In early November of 1982, Olano began cooperating with the

FBI. Olano told law enforcement agents that Dyer was requesting

substantial sums of money, purportedly to affect the outcome of

votes both in the Planning Commission and in the City Council. The

FBI began investigating Dyer, suspecting widespread corruption

among New Orleans city officials. They came to believe that, in

addition to accepting bribes in exchange for his own votes and

political influence, Dyer might also be acting as a "bag man" on

behalf of local politicians.

To obtain evidence of this suspected corruption, the FBI

requested that Olano assist in the recording of both face-to-face

and telephone conversations with Dyer. On November 8, 1982, Dyer

and Olano met at the Plimsoll Club in New Orleans. During their

conversation, which was recorded by Olano, Dyer repeated that he

had expended $25,000 to assure passage of the La Maison Charles

project and requested reimbursement in cash, explaining that it had

been necessary to pay off certain public officials to ensure their

votes. He told Olano that he had delivered the Planning Commission

vote, but warned that the City Council might rescind their approval

of the La Maison Charles project, unless he began to live up to his

"obligations." However, Dyer assured Olano that if Olano paid him

4
$25,000 quickly (and in cash), and finalized an agreement for the

financing of the Algiers Point project, that Dyer could ensure that

a certain City Councilman would continue to support the proposal.2

The next day, November 9, 1982, Dyer reiterated the same

representations and implicit threats in the course of several

telephone conversations. Olano agreed to meet Dyer later that day

at the Hyatt Regency Hotel in New Orleans. At the meeting, Dyer

explained to Olano that he needed payment in cash because the

individuals whom he needed to pay preferred dealing in cash. Olano

told Dyer that he had not been able to get the entire $25,000 in

currency, but that he had $5,000 in cash and a check for $20,000.

Dyer accepted the money and the check, with the understanding that

he would hold the check while Olano delivered the remaining $20,000

in cash over the next few days. Apparently Olano did not contact

Dyer again for several days after the payment.

Six days later, on the evening of November 15, 1982, Dyer,

accompanied by his civil attorney, Stephen Dwyer, approached Arthur

Lemann, a New Orleans attorney who specialized in criminal law

practice. The next day, Dyer caused a letter to be mailed under

the signature of his civil lawyer, Dwyer, to Olano’s office.3 The

2

A transcript of this conversation was made a part of the record in
the later criminal prosecution of Dyer and is a part of the record
on this appeal. The transcripts of eight recordings of
conversations between Dyer and Olano were submitted as evidence
during Dyer’s rearraignment and Rule 11 hearing. All of the
conversations discussed herein are contained in the transcripts.
3

The record before us, including the written stipulation signed by
Dyer and his attorney that was put in evidence at the hearing at

5
letter falsely stated that the $25,000 payment had been an advance

of funds on the Algiers Point project, and was being returned by

Dyer due to the expiration of Olano’s letter of commitment

regarding the financing of the project. On November 17, Dyer had

a telephone conversation with Olano during which he told Olano that

his demand for the money had merely been a "little test" to

determine whether Olano was corruptible and to determine whether

other local politicians were accepting bribes. Dyer commended

Olano on seeming very reluctant to pay the money, and congratulated

him for passing the test "with flying colors."

Approximately two weeks later, on December 2, 1982, Dyer was

indicted under the Hobbs Act for extortion. A grand jury

investigation continued after Dyer’s initial indictment, and on

April 3, 1983, the grand jury issued subpoenas to both of Dyer’s

attorneys, Lemann and Dwyer, calling them to testify before the

grand jury regarding their interactions with Dyer subsequent to the

November 15 meeting. The government also announced that it might

seek a superseding indictment against Dyer to add one count of

obstruction of justice in violation of 18 U.S.C. § 1512.4

which Dyer’s plea to mail fraud was accepted and Dyer’s sworn
testimony at that hearing, reflect that the letter was mailed and
that Dyer caused it to be mailed. Dyer has not and does not
dispute that the letter was mailed and that he caused it to be
mailed. However, in our opinion in United States v. Dyer, 722 F.2d
174 (5th Cir. 1983) (disposing of an appeal of the district court’s
pre-trial refusal to quash subpoenas while the Hobbs Act indictment
was still pending), we stated that on "November 16, Dwyer delivered
to Olano’s office a letter which returned twenty-five thousand
dollars." Id. at 176 (emphasis added).
4

See United States v. Dyer, 722 F.2d 174 (5th Cir. 1983).

6
 Eventually, Dyer began negotiating a plea agreement with the

government. Pursuant to the plea agreement, a superseding bill of

information charging Dyer with one count of mail fraud was

prepared. The information was based on essentially the same facts,

related above, as the indictment for extortion. The government

asserts, and Dyer does not dispute, that the substantive crime

charged was changed from extortion to mail fraud to reduce Dyer’s

sentencing exposure from a maximum of twenty years to a maximum of

only five.

At his rearraignment, Dyer waived his right to be charged by

indictment and pleaded guilty to the one-count superseding

information charging him with violation of section 1341, the

mailing alleged being the November 16, 1982, letter. A letter

formalizing the plea agreement and the FBI transcripts of the

inculpatory conversations were received into evidence as was the

written Rule 11 "statement of facts." The district court accepted

Dyer’s plea of guilty. On October 24, 1984, the district court

sentenced Dyer to two year’s incarceration, but suspended all but

six months, which Dyer served at the Federal Prison Camp at

Texarkana, Texas.

On June 24, 1987, the Supreme Court handed down McNally v.

United States, 107 S.Ct. 2875 (1987), which held that the federal

mail fraud statute under which Dyer was convicted did not encompass

protection of the "intangible right of the citizenry to good

government." See id. at 2879, 2882. Nearly nine years after

McNally, in March of 1996, Dyer filed a petition for a writ of

7
coram nobis, requesting that his conviction be vacated. The sole

argument presented in his petition is that under McNally the

superseding bill of information failed to state a crime because it

alleged a scheme to deprive the City of New Orleans and its

citizens of the intangible right of "good government."

In the district court, the government argued that the bill of

information stated an offense under McNally because it specifically

identified Dyer’s attempt to obtain the $25,000 and financing for

the Algiers Point project as part of the charged fraudulent scheme.

The government also argued that the writ should be denied on the

basis of laches. It had been almost twelve years since Dyer had

pleaded guilty to mail fraud, and he had waited until nearly nine

years after McNally provided him with a colorable legal basis to

attack his conviction before finally choosing to do so. The

government asserted that it would be prejudiced by this delay if it

chose to retry Dyer, specifically alleging that many of the files

from the thirteen-year-old investigation had been "scrubbed"; that

the FBI agents who had worked on the case could not easily be

located, some of them having retired and others having transferred;

and that three of the government’s key witnesses, including Olano,

had been convicted subsequent to Dyer’s conviction and would very

likely be unwilling to testify on behalf of the government.

Neither Dyer nor his attorney attempted to explain the delay, nor

did they dispute the government’s specific factual assertions

regarding the prejudicial nature of the delay. Dyer’s only

response was that the government had no "legitimate" interest in

8
retrying him because he had already served his time.

In a brief opinion, the district court held that the

superseding bill of information sufficiently stated an offense

under McNally because it alleged a specific property deprivation.

Accordingly, it denied Dyer’s petition for the writ.5 Dyer has

timely appealed to this Court.

Discussion

I. The Writ of Coram Nobis

In 1954, the Supreme Court’s decision in United States v.

Morgan, 74 S.Ct. 247, revived the ancient writ of coram nobis by

holding that the writ was available in federal courts pursuant to

the All Writs Act, 28 U.S.C. § 1651(a).6 Since that time the writ

has been used as an avenue of collateral attack when the petitioner

has completed his sentence and is no longer "in custody" for

purposes of seeking relief under either 28 U.S.C. § 2241 or § 2255.

In Morgan, the Court emphasized that the writ of coram nobis

could not be used as a substitute for appeal and should only be

employed to correct errors "of the most fundamental character."

Morgan, 74 S.Ct. at 253 (citing United States v. Mayer, 35 S.Ct.

5

Because the district court found the superseding bill of
information to state an offense under McNally, it found it
unnecessary to rule on the government’s laches argument.
Additionally, the district court does not appear to respond to the
argument that Dyer presented orally regarding the sufficiency of
the mailing charged.
6

Section 1651(a) provides: "The Supreme Court and all courts
established by Act of Congress may issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable
to the usages and principles of law."

9
16, 19 (1914)). The Court further admonished that "[c]ontinuation

of litigation after final judgment and exhaustion or waiver of any

statutory right of review should be allowed through this

extraordinary remedy only under circumstances compelling such

action to achieve justice." Id. at 252. The writ will issue only

when no other remedy is available and when "sound reasons exist[]

for failure to seek appropriate earlier relief." Id. at 253. In

addition, a petitioner bears the considerable burden of overcoming

the presumption that previous judicial proceedings were correct.

Id.

We note the special nature of the writ to explain the context

of our discussion below. While Dyer points to asserted errors that

might warrant more extensive treatment on direct appeal, they fall

short of the class of "fundamental" errors that merit remedy

through issuance of a writ of coram nobis. He also has failed to

demonstrate "circumstances compelling such action to achieve

justice." Moreover, he has failed to allege with any specificity

what lingering civil disabilities he continues to suffer as a

result of his 1984 mail fraud conviction. The demonstration of

such disabilities is one of the most significant factors in

determining whether sufficiently "compelling circumstances" exist

and is often a prerequisite to coram nobis relief. As we

repeatedly have stated, "Coram nobis is appropriate only where the

petitioner can demonstrate that he is suffering civil disabilities

as a consequence of the criminal convictions" that are being

10
collaterally attacked.7 We also emphasize that our review is

limited by the presumption of correctness of prior proceedings and

the narrow range of claims cognizable in granting the remedy sought

by Dyer.

II. Dyer’s Claims of Error

Dyer raises essentially three issues on appeal. First, he

makes a half-hearted argument that the information fails to state

a fraudulent use of the mails, asserting parenthetically that "it

is doubtful that the information in this case could have ever

charged a mail fraud scheme with Olano as the victim since the only

mailing involved here was one returning the money to Olano."

Second, Dyer asserts that his conviction was based solely on the

"intangible rights" theory of fraud that was invalidated by McNally

and must therefore be vacated. Third, Dyer responds to the

government’s argument that his petition should be denied on the

basis of laches.

A. The Mailing

Although Dyer mentions the sufficiency of the mailing only

"parenthetically" in his brief on appeal, he argued the issue

orally before the lower court, so we briefly address this claim.

7

United States v. Marcello, 876 F.2d 1147, 1154 (5th Cir. 1989)
(emphasis added). See also United States v. Bruno, 903 F.2d 393,
396 (5th Cir. 1990) (remanding with instructions to issue a writ of
coram nobis only upon demonstration of continuing civil
disabilities); Cline v. United States, 453 F.2d 873, 874 (5th Cir.
1972) (holding that petitioner had failed to demonstrate the
requisite "compelling circumstances" because writ of coram nobis
would not "afford Petitioner any relief" from alleged civil
disabilities).

11
One of the elements of the offense of mail fraud is that the

defendant cause the mails to be used "for the purpose of executing

[the] scheme or artifice" to defraud or in "attempting so to do."

Section 1431. It is often stated that the mailing must be "in

furtherance of" the scheme to defraud.8 It does not, however, have

to constitute a central or essential element of the scheme.9 As

Dyer has argued, the mailing in this case facilitated the return of

the money to Olano, and, consequently, there is some difficulty in

categorizing the mailing as having been "in furtherance of" a

scheme to defraud. Because Dyer does not press this argument on

appeal——failing to cite a single case in his favor and expending

only one complete sentence in addressing the issue——we do not pause

to consider it at great length. The letter made false

representations and was intended to decrease the likelihood of

discovery and prosecution. The mailing at issue thus arguably

falls within the outer boundary described by the Supreme Court in

United States v. Lane, 106 S.Ct. 725, 733 (1986), and United States

v. Sampson, 83 S.Ct. 173 (1962). Furthermore, it is not clear

8

See, e.g., McNally v. United States, 107 S.Ct. 2875, 2881 (1987)
("We believe that Congress’ intent in passing the mail fraud
statute was to prevent the use of the mails in furtherance of such
[fraudulent] schemes.").
9

For example, a mailing is sufficient if it is "designed to lull the
victims into a false sense of security, postpone their ultimate
complaint to the authorities, and therefore make apprehension of
the defendants less likely than if no mailings had taken place."
United States v. Lane, 106 S.Ct. 725, 733 (1986) (quoting United
States v. Maze, 94 S.Ct. 645, 650 (1974)). It is also sufficient
if it is intended to "facilitate concealment of the scheme." Id.
at 734.

12
that Dyer’s scheme had ended at the time of the mailing. The

record contains some evidence tending to indicate that Dyer still

expected Olano to participate in the financing of Algiers Point

after the return of the money. As discussed above, both the

financing itself and the $100,000 annual "management fee" were

alleged in the information to be objects of the charged scheme.

Dyer does not assert, and the record does not unambiguously

indicate, that the challenged mailing occurred after completion of

the scheme alleged in the bill of information. Consequently, we

hold that even if Dyer has preserved this issue on the present

appeal, he has not shown with the clarity requisite for coram nobis

relief that the mailing is insufficient.10 Hence he is not entitled

to relief on that basis.

B. Sufficiency of the Bill of Information

10

Even assuming, arguendo, that we would hold the mailing
insufficient if presented to us on direct review of a jury verdict,
we are less inclined to do so here. By pleading guilty a defendant
waives all nonjurisdictional defects in the prior proceedings.
United States v. Miramontez, 995 F.2d 56, 60 (5th Cir. 1993);
United States v. Diaz, 733 F.2d 371, 376 (5th Cir.1984) ("[A] valid
guilty plea waives all nonjurisdictional defects in the proceedings
against a defendant."). See also O’Leary v. United States, 856
F.2d 1142 (8th Cir. 1988) (stating that because all
nonjurisdictional errors are waived by a plea of guilty, a mailing
is sufficient if the charging instrument on its face states that
the mailing was in furtherance of the charged scheme). We also
note that failure to broadly review the mailing issue does not
result in any fundamental injustice to Dyer. He was charged with
a superseding bill of information which could have been amended at
any time to substitute another use of the mails. See United States
v. Prince, 868 F.2d 1379, 1384 (5th Cir. 1989). The record on
appeal indicates that the mails were used during negotiations
regarding the Algiers Point project. Any one of these mailings
likely would have been sufficiently "in furtherance of" the part of
the scheme to obtain financing for Algiers Point and could have
been easily substituted for the mailing in question.

13
 Dyer’s second argument is that his conviction was based

"solely" on an intangible rights theory that was invalidated by

McNally. He asserts that the district court misapplied both

McNally and the law of this Circuit in holding that the information

sufficiently stated the offense of mail fraud. Moreover, Dyer

claims that the case at bar is factually "indistinguishable" from

United States v. Marcello, 876 F.2d 1147 (5th Cir. 1989), in which

we applied McNally retroactively, granting one of the petitioners

a writ of coram nobis and granting the other relief under 28 U.S.C.

§ 2255. We first consider Dyer’s specific claim that Marcello

dictates reversal of the lower court’s decision, and we then

proceed to address Dyer’s more general claim that his information

failed to state an offense under McNally.

Marcello involved two petitioners who collaterally attacked

their mail fraud convictions pursuant to McNally, arguing that

their indictments failed to state an offense because they were

charged solely on an intangible rights theory. Marcello, 876 F.2d

at 1149-50. One of the two, Roemer, had completed his sentence, so

his only remedy lay in seeking a writ of coram nobis. Roemer was

charged by indictment and convicted by a jury. Id. at 1151. The

"indictment contain[ed] no property interest allegation whatever."

Id. The prosecution described the scheme to the jury as one to

defraud citizens "of their right to the honest and faithful

services of their elected and appointed officials," and the

evidence presented at trial was relevant to bribery and other

deprivations of the "right to honest and faithful service" of

14
public officials. Id. at 1152. The jury instructions allowed

conviction upon an intangible rights theory. Id. We concluded

that the facts of the case "impel[ed] the conclusion that the

intangible rights theory was the sole basis on which the jury could

have convicted the defendants." Id. at 1150-51 (emphasis added).

Roemer had exhausted the remedies available to him on direct appeal

and "sought [collateral] relief promptly after McNally." Id. at

1154. And, finally, in Marcello the government did not "challenge

the propriety" of coram nobis, and treated Roemer’s appeal as if he

were seeking relief under section 2255. Id.

In sharp contrast, Dyer was charged by a superseding bill of

information drafted pursuant to a plea agreement.11 The information

contained specific allegations of both money and property loss.

Dyer pleaded guilty before a judge to whom was presented a

"statement of facts" that reflected, inter alia, Dyer’s scheme to

deprive Olano of both money and property within the meaning of

McNally.12 Dyer, under oath, admitted in open court that the

11

The relevance of the distinction between grand jury indictments and
bills of information is explained in more detail below in our
discussion of the Prince case.
12

In this case, there was no reference to the intangible rights
doctrine in the Rule 11 hearing, either by the court or either of
the parties. The transcript also reflects that in defining the
elements of mail fraud the court stated: "The words, scheme and
artifice, as I’ve used them, include a plan or course of action
intended to deceived others, and to obtain by false or fraudulent
pretenses, representations or promises money or property from a
person so deceived." (emphasis added). The court’s use of the
phrase "money or property" was without any accompanying explanation
that the right to honest government can constitute property.

15
statement of facts was accurate. Prior to sentencing, Dyer

provided the trial court with written testimony claiming that he

was not guilty of corruption and denying that he had deprived the

City of honest government, but admitting that he had obtained money

from Olano by means of fraudulent representations.13 Dyer did not

challenge the sufficiency of the information in the trial court,

nor did he pursue an appeal. He did not seek relief promptly after

the McNally decision gave him a colorable basis to do so, waiting

almost nine years before instituting the instant proceeding. Dyer

does not allege, nor did he offer proof of, any specific lingering

civil disability caused by his conviction.14 And finally, the

13

We have held that evidence adduced after the acceptance of a guilty
plea, but before or at sentencing, may provide the factual basis of
the plea, and that such evidence may be sufficient to sustain a
plea on direct appeal. United States v. Gulledge, 491 F.2d 679
(5th Cir. 1974). Dyer’s statements in his affidavit in aid of
sentencing and the statements that he made to the probation officer
preparing his presentence report constitute circumstantial evidence
of the factual basis upon which the district court relied in
accepting the plea, as well as Dyer’s subjective belief regarding
the offense with which he was charged and the factual basis for his
plea. The inferences fairly drawn from Dyer’s statements reflect
that Dyer either believed, and/or sought to have the court believe,
that he was free from any taint of governmental corruption, but
that he had, in the course of his dealings with Olano, committed
mail fraud.
14

Dyer’s petition for coram nobis relief, his supporting memorandum,
and reply memorandum make no mention whatever——general or
specific——of any lingering civil disability due to the conviction.
It appears that Dyer’s only mention of civil disabilities in the
court below is found in his separately filed, one-page request for
oral argument on the motion, which contained only the conclusory
allegation that "he continues to suffer significant civil
disabilities to this day." There was no mention of disabilities at
the oral argument before the district court. And the record does
not reflect any specific lingering disability, or what, if any,
effect Dyer’s 1984 conviction has on him today or had on him when

16
government vehemently challenges the propriety of the writ as to

Dyer on both legal and equitable bases. In sum, not only are the

facts in the case sub judice not, as Dyer claims, virtually

indistinguishable from those in Marcello, but a comparison of the

two cases reveals several distinguishing factors that strongly

militate against issuance of a writ of coram nobis.

Dyer also makes a general argument attacking the sufficiency

of the superseding bill of information in his case, claiming that

it failed to state an offense under McNally. In United States v.

Prince, 868 F.2d 1379 (5th Cir. 1989), we articulated the standard

under which the sufficiency of a charging instrument is evaluated

in a collateral attack. In that case we stated that:

"’[T]he sufficiency of an indictment or information is
not open to collateral attack after conviction unless it
appears that the circumstances are exceptional, that the
questions raised are of “large importance,” that the need
for the remedy sought is apparent, and that the offense
charged was one of which the sentencing court manifestly
had no jurisdiction.’" Id. at 1384 (quoting Merrill v.
United States, 599 F.2d 240, 242 (8th Cir. 1979)).

We also distinguished the appropriate treatment on review of

indictments from that of bills of information on the basis that

when a defendant points out a defect in a bill of information, "the

prosecution [can] easily amend[] it without sending it back to the

grand jury." Id. Finally, we held that delay in seeking a remedy

weighed heavily against the petitioner, stating that the "tardier

the challenge, the more liberally and aggressively have indictments

been construed so as to save them." Id. (citing United States v.

the writ was filed in 1996.

17
Richardson, 687 F.2d 952, 962 (7th Cir. 1982)).

In the case at bar, Dyer was charged by means of a superseding

bill of information. The charging instrument was prepared in the

context of a negotiated plea agreement. The record reflects that

both Dyer and his counsel had reviewed the information prior to

Dyer’s plea and could easily have requested any technical changes

necessary. In addition, as discussed above, Dyer has delayed

bringing this collateral attack on his conviction for nearly a

decade. Consequently, under the various rationales articulated in

Prince, and the cases cited therein, we proceed to construe the

challenged information liberally and will uphold its sufficiency if

by any reasonable construction it can be said to charge an offense.

See id. at 1384. Such an approach is especially appropriate where

the sentence was completed a decade before relief is first sought

and no specific disabilities are alleged.

In his brief, Dyer argues that the information was fatally

defective under McNally because "[t]he information alleged that the

citizens and the City of New Orleans were the victims of Dyer’s

scheme, not Olano." He further asserts that the information

contained no allegation that he deprived the City of money or

property, and concludes that because he "was only charged with

defrauding the victims of their intangible right to ‘good

government,’ his conviction is invalid." (emphasis in original).

It is true that Dyer’s bill of information does not mention

Olano by name, and that it does contain "intangible rights"

language. However, the only scheme to defraud charged in the

18
information is described in three paragraphs, each of which

implicates Olano as either the victim of Dyer’s fraud or as having

received the benefits of bribing Dyer.15 As the Seventh Circuit

stated in a similar case, "[t]he legal characterization the

indictment places on the scheme should not obscure the fact that

the specific conduct alleged in the indictment is clearly

proscribed by the mail fraud statute." United States v. Wellman,

830 F.2d 1453, 1463 (7th Cir. 1987). The court continued, "[i]n

sum, we believe that McNally prescribes more than a rule of

15

The scheme charged in Dyer’s information is described exclusively
in three paragraphs, which read as follows:

"1. It was part of the scheme and artifice to
defraud the City of New Orleans and its citizens that the
defendant, T. WINDLE DYER, did use his position as an appointed
member of the New Orleans City Planning Commission to promote the
recommendation of and the passage of a time-share proposal for La
Maison Charles before the City Planning Commission and the New
Orleans City Council by seeking to influence members of those
government bodies, while at all times intending to receive a future
personal financial benefit as a result of this support in the form
of financing of the Algiers Point project which included the
payment of a $100,000 management fee.
2. It was a further part of the said scheme and
artifice to defraud that the defendant did demand that
the developer of La Maison Charles pay Dyer $25,000
allegedly for reimbursement of funds expended to assure
passage of the time-share proposal.
3. It was a further part of the said scheme and
artifice to defraud that the defendant did threaten to
use his position as a City Planning Commissioner and his
influence with a New Orleans City Councilman to prevent
final ratification of the La Maison Charles time-share
ordinance with provisos unless the developer of La Maison
Charles paid the $25,000 in cash and finalized plans for
the financing of the Algiers Point project."

As discussed below, prior to sentencing Dyer denied under oath the
allegations in paragraph one, and consequently we infer that the
allegations in paragraphs two and three provided the factual basis
for his conviction.

19
pleading." Id. And as Judge Easterbrook replied to a similar

contention in United States v. Keane, 852 F.2d 199 (7th Cir. 1988),

"the mail fraud statute proscribes fraudulent schemes" and "does

not limit the category of victims."16 Id. at 205 (emphasis in

original).

Dyer’s admitted conduct toward Olano evinced a clear intention

to deprive Olano of both money and property by means of false

representations, falling well within the range of fraudulent

schemes punishable under the mail fraud statute after McNally.17

Furthermore, as discussed above, the conduct described in the

information had initially served as the basis for an indictment

charging Dyer with having extorted Olano. In light of the

foregoing, we are unpersuaded by the assertion that the information

did not contemplate Olano as a victim, or one of the victims, of

16

With regard to the sufficiency of the charging instrument in that
case, the court went on to state that, although it was "phrased in
terms of intangible rights to honest services, the indictment
notified Keane of [the relevant] aspects of the scheme," and the
court held the indictment sufficient. Id. Similarly, here the bill
of information was more than sufficient to put Dyer on notice that
the or an object of the alleged fraud was to deprive Olano of money
and property.
17

McNally noted that "fraud" had traditionally referred to "’wronging
one in his property rights by dishonest methods or schemes,’" and
that to defraud "’usually signif[ies] the deprivation of something
of value by trick, deceit, chicane or overreaching.’" 107 S.Ct. at
2881 (citations omitted). The alleged scheme falls squarely within
the McNally definition of fraud. Dyer admits that he tricked Olano
out of the money by means of deceit (i.e., his false
representations that he had used money to affect the outcome of the
City Council and Planning Commission votes).

20
the fraudulent scheme.18

With regard to Dyer’s assertion that he was convicted "solely"

on an intangible rights theory, we observe that in the affidavit he

submitted to the trial court prior to sentencing he specifically

stated that the representations he had made to Olano were false and

were made with the intent to cause Olano to pay him the $25,000 and

to commit to financing Algiers Point. He further claimed therein

that he had never compromised the integrity of the City’s

governmental processes. As of sentencing, the only criminal

behavior to which Dyer had admitted was that of fraudulently

obtaining money (and attempting to obtain development financing)

from Olano.19

Given Dyer’s sworn assertions to the court that he had not

deprived the City of New Orleans of the intangible right of good

18

We also note that the substantive crime charged in the superseding
information was obviously changed to mail fraud pursuant to the
plea negotiations to reduce Dyer’s maximum sentencing liability
from twenty years to five years, and that although Dyer’s original
indictment did not refer to Olano by name, it was clear he was the
intended victim.
19

In his affidavit Dyer states: "I never spent a penny on behalf of
the La Maison Charles time share project, I had no influence with
[City Councilman] John Singleton, [and] I never sought to influence
the councilman." He characterizes his dealings with Olano as a
mere "charade," and states that "anger and frustration" led him "to
play out a scenario for Olano which had absolutely no basis in fact
-- I reminded him of the $25,000 he had committed to pay and I
suggested that . . . I had expended funds in excess of this amount
in securing the La Maison Charles zoning amendment and, moreover,
that in some way I could influence [Councilman] Jim Singleton’s
position on this issue." (emphasis added). Near the end of the
affidavit, he asserts that "while I suggested to Guy Olano that I
had engaged in certain illegal conduct on behalf of La Maison
Charles I had not done so." (emphasis in original).

21
government, and that he had not engaged in any illegal conduct in

connection with his involvement in local government, we fail to see

how the trial court could have accepted Dyer’s plea, convicted him,

and sentenced him on any factual basis not involving a scheme to

defraud Olano within the meaning of McNally. In the Rule 11

hearing, the court did not once mention the City of New Orleans as

the victim or use "intangible rights" language in describing the

charged offense.20 While under other circumstances, and in a

different procedural context, we might find arguable merit in

Dyer’s contention that the information was so flawed as to require

invalidation of his conviction,21 in the present context and

20

Dyer bears a "heavy burden" in seeking to overcoming the strong
presumption of the regularity of prior proceedings. Marcello v.
United States, 328 F.2d 961, 963 (5th Cir. 1964). As we stated in
that case, on appeal the court appropriately considers all credible
evidence, including, inter alia, "the parole report, the judgment
and commitment, and [relevant] testimony." Id. Pursuant to Rule
11(f) of the Federal Rules of Criminal Procedure, notwithstanding
a plea of guilty, a district court should not enter judgment upon
that plea without ensuring that there is a sufficient factual basis
for it. In Dyer’s case, the court had accepted the plea but had
not entered judgment when Dyer submitted an affidavit in which he
denied one of the two factual scenarios upon which he could have
been convicted. He absolutely denied participation in any form of
governmental corruption, while admitting that he made false
representations to Olano with the intent to obtain money and a
financing commitment from him. In statements provided for
preparation of the presentence report, he also specifically denied
any extortion occurred and admitted mail fraud. We assume that the
district court would not have proceeded to enter judgment in the
face of what amounts to a claim of innocence regarding the
allegations of corruption, or would have at least treated Dyer’s
affidavit as a motion to withdraw his plea, unless it was satisfied
that the alternative factual scenario, which necessarily implicated
fraud with Olano as a victim, provided a sufficient factual basis
for the plea.
21

For example, if the conviction had been obtained pursuant to a jury

22
circumstances we hold that the information sufficiently stated an

offense under McNally and that, given the facts adduced in the Rule

11 statement and the explicit admissions made in Dyer’s affidavit

to the court, his plea was valid and adequately supported by record

evidence.

III. General and Equitable Requirements

In light of Dyer’s assertion that our reasoning and analysis

in Marcello essentially mandated the relief he sought, we pause

briefly to reiterate and emphasize two general requisites to coram

nobis relief, neither of which Dyer has met.

A. Inexcusable and Unexplained Delay

In Marcello, the petitioner brought his collateral attack

promptly after McNally, and the government did not challenge the

propriety of the use of the writ. Marcello, 876 F.2d at 1153-54.

In contrast, Dyer waited an extremely long time to bring his suit,

and the government emphatically urged the bar of laches in the

district court and reasserts on appeal that Dyer’s petition should

be barred by laches. It has long been recognized that a petitioner

seeking coram nobis must exercise "reasonable diligence" in seeking

prompt relief.22 Because we may affirm the judgment of the district

trial rather than a plea arrangement, and there had not been a
prior indictment in which Olano was alleged to be the victim of
Dyer’s extortion, and the case were before us as a direct appeal
rather than as a long-delayed collateral attack, there is a
possibility that we would be more receptive to Dyer’s legal
arguments.
22

See, e.g., United States v. Morgan, 74 S.Ct. 247, 253 (1954)
(requiring "sound reasons" for a petitioner’s "failure to seek
appropriate earlier relief"); Telink, Inc. v. United States, 24

23
court on any basis that was presented in the lower court, and

because both parties have briefed the laches issue, we address it.

In the district court, the government made facially reasonable

assertions explaining how Dyer’s delay would prejudice any attempt

to retry him on the original charges. Dyer did not, and has not,

attempted to explain the delay.23 On appeal, the government

reasserts that it would be significantly prejudiced in retrying

Dyer, again making the plausible, facially reasonable assertions

that many of the relevant files have been "scrubbed" in the

intervening time period,24 that the FBI agents who investigated Dyer

in November of 1982 would be difficult, perhaps impossible, to

F.3d 42, 47 (9th Cir. 1994) ("In requiring reasonable diligence at
all times, our holding ensures a petitioner will not use an
analogous limitations period as a safe haven for prejudicing the
government, willfully delaying the assertion of his or her rights
and then raising the claim after the inexcusable delay has impaired
the government’s ability to respond to the allegations or to
proceed to retrial."); United States v. Darnell, 716 F.2d 479, 481
n.5 (7th Cir. 1983) ("The doctrine of laches adequately protects
against ‘sandbagging’ and ensures that coram nobis relief will not
be granted where a petitioner’s inexcusable delay in raising his
claim has prejudiced the government.").
23

Before the district court, Dyer’s counsel essentially conceded that
no reasonable explanation for the delay had been presented (or
would be forthcoming), stating that "[U]nquestionably Dyer waited
a long, long time. Why, I don’t know. He’s not a lawyer. That’s
all I can tell the Court. He’s not a lawyer. He waited a long,
long time."
24

The attorney for the government emphasized that almost thirteen
years had passed since the original investigation. He further
stated that "the files that I have got . . . have been scrubbed as
a result of the procedures that we used, . . ."

24
locate,25 and that, because three of the government’s principal

witnesses have since been convicted and incarcerated, they would

very likely be unwilling or unhelpful witnesses.26 Dyer did not

dispute any of these assertions in the lower court, nor does he do

so now. Instead, he attempts, as he did below, to counter the

government’s laches argument solely by asserting that the

government has no "legitimate" interest in retrying him because he

has already completed his sentence. He further argues that because

he "has already been punished for his conduct, the government

25

The government’s attorney explained to the district court that many
of the FBI agents who conducted the surveillance in the original
investigation had been transferred or had retired and would be
difficult to locate. In its brief, the government reasserted this
difficulty stating that "many of the government agent witnesses
will be difficult, if not impossible, to locate, having either
moved to other offices or retired from the FBI." Moreover,
considering the amount of time that has elapsed, even if they were
found and gathered to testify at trial, their memories of the
investigation would undoubtably have faded somewhat in the
intervening decade.
26

In its appellee’s brief, the government asserts that "[e]ven more
prejudicial [than the difficulty of locating the original
investigating FBI agents] is the fact that three of the
government’s potential witnesses were subsequently prosecuted by
the government, convicted, and have no interest in testifying on
behalf of the government or remembering events of the distant
past." The government’s attorney explained this in more detail
before the district court, stating that "[t]hree of my witnesses,
because this [Dyer’s extortion prosecution] was abandoned, have now
been prosecuted and found guilty of felonies since that situation,
and I’m responsible for [the prosecution] of two of those guys,"
one of whom, Olano, "is serving eighteen years." Under the
circumstances, the government is understandably skeptical about the
both the willingness and the ability of these witnesses to recall
the events of November 1982.

25
cannot now seek to incarcerate him for a second time."27

Dyer’s argument is both unavailing and incorrect as a matter

of law. Dyer could be lawfully retried.28 And, if he were

convicted, an increased penalty could be legitimately and lawfully

imposed, although he would receive credit for the time he had

already served.29 Moreover, Dyer’s argument that the policies

underlying double jeopardy jurisprudence indicate that any

"legitimate" governmental interest in retrying him was essentially

extinguished upon the completion of his original sentence is simply

27

Similarly, in oral argument before the district court, Dyer’s
counsel answered the government’s prejudice argument solely by
asking the court to assume that the government would not in fact
choose to retry Dyer if his conviction were vacated, calling the
government’s assertion that it would retry Dyer "empty hollow
threats," arguing that the government "could not justify retrying
this man [Dyer]" because "they couldn’t give him any more
punishment" than was imposed pursuant to the original conviction,
and asserting that "the government has one simple lingering
interest in this case, and that is to continue to brand this man as
a felon for conduct that is not a felony." Dyer made no written
response below to the government’s plea of laches.
28

We have specifically held that double jeopardy does not bar retrial
of individuals whose mail fraud convictions have been set
aside pursuant to McNally. See, e.g., United States v. Miller, 952
F.2d 866 (5th Cir. 1992). See also United States v. Italiano, 894
F.2d 1280 (11th Cir. 1990) (allowing retrial of defendant whose
initial conviction had been overturned pursuant to McNally). In
Italiano, the court held that a superseding indictment based on the
same underlying facts could be brought pursuant to 18 U.S.C. §
3288, which allows a new indictment to be brought within six months
of the dismissal of an earlier indictment irrespective of the
original statute of limitations.
29

If a plea of guilty is withdrawn, or a plea agreement is abrogated,
double jeopardy principles do not proscribe the imposition of a
harsher punishment if the defendant is reconvicted. See, e.g.,
Alabama v. Smith, 109 S.Ct. 2201 (1989).

26
incorrect. The government has a strong and legitimate interest

both in the finality of convictions30 and in the enforcement of plea

bargains.31

Here we are faced with nearly a decade of unjustified delay.

The government has consistently made facially plausible factual

assertions regarding resulting prejudice both in the district court

and in this Court. Dyer has failed ever even to dispute the

factual assertions of prejudice made by the government and has

offered absolutely no explanation for his delay in seeking

collateral relief. He has not asserted that the government should

be put to its proof on this score. His only answer to the

government’s facially reasonable assertions——that policy

considerations weigh against the recognition of the "legitimacy" of

any interest the government may have in retrying him——is without

legal merit. In this posture, laches may properly bar relief. Cf.

Telink, Inc. v. United States, 24 F.3d 42, 47 (9th Cir. 1994).32

30

Emphasizing the importance of finality, the Supreme Court stated in
Morgan, 74 S.Ct. at 252, that the "[c]ontinuation of litigation
after final judgment and exhaustion or waiver of any statutory
right of review should be allowed through this extraordinary remedy
only under circumstances compelling such action to achieve
justice."
31

In recognition of the mutual benefits yielded by plea bargains and
their enforcement, the Supreme Court has upheld the practice of
providing for a lenient sentence to induce a plea bargain, as well
as the practice of threatening increased or additional charges if
a defendant does not enter into a plea agreement. Alabama v.
Smith, 109 S.Ct. 2201, 2206 (1989). See also Bordenkircher v.
Hayes, 98 S.Ct. 663, 667 (1978).
32

We pause to note that with respect to habeas corpus petitions, we

27
 B. Lingering Civil Disabilities

Dyer has failed to allege any specific lingering civil

disability resulting from his mail fraud conviction, despite our

statement in Marcello that coram nobis "is appropriate only where

the petitioner can demonstrate that he is suffering civil

disabilities as a consequence of the criminal convictions."

Marcello, 876 F.2d at 1154. As noted above, Dyer has failed even

to hint what adverse collateral consequences of his conviction

might support the relief he seeks.

We have indicated in past cases that we will generally not

presume that the collateral consequences of a prior conviction are

sufficiently substantial to demonstrate the "compelling

circumstances" that warrant coram nobis relief.33 Dyer has failed

have held that "no matter how long after conviction a petition is
filed it may not be dismissed [under Rule 9(a)] absent a
particularized showing of prejudice." Marks v. Estelle, 691 F.2d
730, 732 (5th Cir. 1982). Marks, however, was a habeas case. This
is a coram nobis case in which liberty has never been at stake, and
no specific continuing disability has been asserted, and we have
undenied, facially plausible, factual assertions of prejudice
resulting from facially unreasonable extreme delay, the only
response to which has been the contention that there is no legally
legitimate interest in retrial. Marks does not dictate the result
in this sort of coram nobis setting.
33

See, e.g., Cline v. United States, 453 F.2d 873, 874 (5th Cir.
1972) (holding the alleged collateral consequences of a prior
conviction insufficient to demonstrate the "compelling
circumstances" that would "justify resort to this extraordinary
remedy [of coram nobis] in order to achieve justice"). See also
United States v. Hay, 702 F.2d 572, 574 (5th Cir. 1983) ("On direct
appeal we declined to speculate as to any adverse effect [from
petitioner’s previous conviction]; we decline to do so now [in a
collateral proceeding]."); Rodgers v. United States, 451 F.2d 562,
564 (5th Cir. 1971) (per curiam denial of rehearing) (conceding
that collateral consequences almost inevitably flow from criminal
convictions, but stating that "th[is] fact alone is not enough to

28
to inform the district court or this Court of any particular

lingering civil disability that would support the issuance of a

writ of coram nobis. Having refused to presume the existence of

the requisite substantial adverse collateral consequences in past

cases, we decline to do so here.

Conclusion

In conclusion, we take cognizance of the Supreme Court’s

admonition in Morgan, which we again emphasized in Marcello, that

"coram nobis should issue to correct only errors which result in a

complete miscarriage of justice," 876 F.2d at 1154. Dyer has

stated under oath to the district court prior to sentencing that he

knowingly and intentionally defrauded Olano of money and obtained

financing obligations from him by making false representations. He

stated in an affidavit directed to the court that he had not,

however, engaged in defrauding the citizens or City of New Orleans

of their right to honest services, but had merely misrepresented to

Olano that he had done so. He repeated these assertions to the

probation officer who prepared his presentencing report.

Accordingly, contrary to his present contention, Dyer’s conviction

has not been demonstrated to rest on a basis repudiated by McNally.

In addition, we note that Dyer has failed to meet several of

the equitable requirements that we have imposed upon petitioners

who request the "extraordinary remedy" of coram nobis. Dyer did

justify issuance of an extraordinary writ of coram nobis."). Cf.
United States v. Bruno, 903 F.2d 393, 396 (5th Cir. 1990)
(remanding case for "a determination regarding the existence of
substantial adverse collateral consequences" with instructions that
coram nobis relief be granted only upon such showing).

29
not act with reasonable diligence in seeking relief, he has not

alleged any specific lingering civil disabilities caused by his

conviction, and he has not shown that denial of the writ would

cause a miscarriage of justice.

In our view, the combination of these factors mandates

withholding the writ. Dyer has not demonstrated that justice

demands issuance of the writ. The district court’s denial of the

petition for a writ of coram nobis is therefore

AFFIRMED.

30