Case: 12-15479 Date Filed: 12/17/2013 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15479
Non-Argument Calendar
________________________
D.C. Docket No. 1:02-cr-00718-CAP-AJB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN F. TRIPLETT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 17, 2013)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Case: 12-15479 Date Filed: 12/17/2013 Page: 2 of 7
In 2003, a jury convicted John Triplett of conspiracy to commit mail, wire,
and honest services fraud, in violation of 18 U.S.C. § 371. Triplett was sentenced
to 51 months’ imprisonment and three years of supervised release. He was also
fined $10,000 and ordered to pay restitution in the amount of $86,512.02. Triplett
satisfied the monetary obligations of his judgment in 2008, and his term of
supervised release ended in 2009.
In 2011, proceeding pro se, Triplett filed a motion requesting relief under 28
U.S.C. § 2255, 28 U.S.C. § 2241, Federal Rules of Criminal Procedure 33 and 34,
28 U.S.C. § 1361, and 28 U.S.C. § 1651. The district court denied his requests for
relief on all grounds. Triplett contends the district court erred in denying relief
because the Supreme Court’s decision in Skilling v. United States, 130 S. Ct. 2896
(2010), decriminalized the honest services fraud statute, and argues the restitution
he paid should be returned. After review,1 we affirm.
1
Triplett’s claim for relief under § 2255 is not before us as both the district court and
this Court denied him a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). We review
the denial of relief under § 2241 de novo. Bowers v. Keller, 651 F.3d 1277, 1291 (11th Cir.
2011). We review the denial of a new trial under Federal Rule of Criminal Procedure 33 for
abuse of discretion. United States v. Sweat, 555 F.3d 1364, 1367 (11th Cir. 2009). A district
court’s subject matter jurisdiction is a question of law reviewed de novo. United States v. Perez,
956 F.2d 1098, 1101 (11th Cir. 1992). We review a district court’s denial of a writ of mandamus
for abuse of discretion. See In re Stewart, 641 F.3d 1271, 1275 (11th Cir. 2011). We review a
district court’s denial of a writ of coram nobis for abuse of discretion. United States v. Peter,
310 F.3d 709, 711 (11th Cir. 2002).
2
Case: 12-15479 Date Filed: 12/17/2013 Page: 3 of 7
28 U.S.C. § 2241
Triplett’s claim for relief under § 2241 fails because Triplett was not “in
custody” at the time that he filed his § 2241 petition. See 28 U.S.C. § 2241(c).
Triplett filed the instant petition in 2011, but had satisfied the monetary obligations
of his judgment in 2008, and was released from supervised release in 2009.
Triplett is also unable to use § 2241 to challenge the restitution portion of his
sentence. See Arnaiz v. Warden Fed. Satellite Low, 594 F.3d 1326, 1329-30 (11th
Cir. 2010).
Federal Rules of Civil Procedure 33 and 34
As to Triplett’s claims under Rules 33 and 34, the time period for filing such
claims has expired. Triplett was convicted in 2003, but did not file the instant
motion until 2011. Because Triplett only had 14 days after the verdict to file a
motion under Rule 33, or 3 years if his motion was based on newly discovered
evidence, the district court did not abuse its discretion in determining that Triplett
was not entitled to relief under Rule 33. See Fed. R. Crim. P. 33. Similarly, the
district court did not err in denying Triplett’s Rule 34 motion because he filed it
more than 14 days after the verdict and therefore the district court did not have
jurisdiction to review it. See Massicot v. United States, 254 F.2d 58, 61 (5th Cir.
1958) (explaining the time period for filing a motion in arrest of judgment under
3
Case: 12-15479 Date Filed: 12/17/2013 Page: 4 of 7
Federal Rule of Criminal Procedure 34 is jurisdictional); see also Fed. R. Crim. P.
34.
Mandamus relief
The district court did not abuse its discretion in denying Triplett mandamus
relief because he failed to identify any federal officer or official owing him a clear
duty. See 28 U.S.C. § 1361 (stating “[t]he district courts shall have original
jurisdiction of any action in the nature of mandamus to compel an officer or
employee of the United States or any agency thereof to perform a duty owed to the
plaintiff”). Moreover, he has not shown there was a “clear usurpation of power or
abuse of discretion” by any federal officer or official. See Carpenter v. Mohawk
Indus., Inc., 541 F.3d 1048, 1055 (11th Cir. 2008) (explaining mandamus relief is
only appropriate where there has been a “clear usurpation of power or abuse of
discretion”).
Writ of error coram nobis
A writ of error coram nobis is available to vacate a conviction after the
petitioner has served his sentence. United States v. Peter, 310 F.3d 709, 712 (11th
Cir. 2002). “The bar for coram nobis relief is high. First, the writ is appropriate
only when there is and was no other available avenue of relief.” Alikhani v. United
States, 200 F.3d 732, 734 (11th Cir. 2000). The error must relate to a “matter of
4
Case: 12-15479 Date Filed: 12/17/2013 Page: 5 of 7
fact of the most fundamental character which has not been put in issue or passed
upon and which renders the proceeding itself irregular or invalid.” Id.
A “‘scheme or artifice to defraud’ includes a scheme or artifice to deprive
another of the intangible right of honest services.” 18 U.S.C. § 1346. In Skilling,
the Supreme Court limited 28 U.S.C. § 1346 to schemes involving bribes and
kickbacks. 130 S. Ct. at 2931. The Supreme Court noted that honest services
fraud “does not encompass conduct more wide-ranging than the paradigmatic cases
of bribes and kickbacks.” Id. at 2933. The Supreme Court held Skilling did not
commit honest services fraud because his indictment did not allege and the
government did not prove Skilling had engaged in bribery or kickbacks, and
instead the theory of liability was based on self-dealing, which did not constitute
honest services fraud. Id. at 2934. The Supreme Court remanded for consideration
of harmless error because the indictment alleged three objects of the conspiracy—
honest services fraud, money or property wire fraud, and securities fraud. Id.
The district court did not abuse its discretion in denying Triplett coram nobis
relief. Triplett’s argument that Skilling’s narrowing of the honest services fraud
statute renders his conviction and restitution unconstitutional is unavailing because
a review of the criminal proceedings shows Triplett was convicted based on mail,
wire, and honest services fraud. The indictment specifically stated Triplett
received kickbacks through the United States mail and wire transfers. The district
5
Case: 12-15479 Date Filed: 12/17/2013 Page: 6 of 7
court instructed the jury that the objects or goals of the conspiracy were to: defraud
Triplett’s employer, the Henry Pratt Company; obtain money from the Henry Pratt
Company by false and fraudulent pretenses; and to deprive the Henry Pratt
Company of its intangible right to Triplett’s honest services. Moreover, the special
jury verdict form showed the jury found Triplett conspired to: defraud the Henry
Pratt Company by United States mail; obtain money from the Henry Pratt
Company by means of false and fraudulent pretenses, representations, and
promises by United States mail; deprive the Henry Pratt Company of Triplett’s
honest services by United States mail; defraud the Henry Pratt Company by
interstate wire transmissions; obtain money from the Henry Pratt Company by
means of false and fraudulent pretenses, representations, and promises by interstate
wire transmissions; and deprive the Henry Pratt Company of the Triplett’s honest
services by interstate wire transmission.
It is clear from the indictment, jury instructions, and special verdict form
that Triplett was found guilty of 18 U.S.C. § 371 based on mail and wire fraud, in
addition to honest services fraud. See Skilling, 130 S. Ct. at 2931-33. And as to
the honest services fraud component of Triplett’s conviction, the indictment shows
the scheme under which Triplett was convicted involved kickbacks and therefore
fell squarely within Skilling’s definition of honest services fraud. See Skilling, 130
S. Ct. at 2931-33. Accordingly, we affirm.
6
Case: 12-15479 Date Filed: 12/17/2013 Page: 7 of 7
AFFIRMED.
7