[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-12070 AUGUST 5, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket Nos. 05-00152-CV-J-25-MCR
01-00251-CR-J-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT LLOYD PEARL,
Defendant-Appellant.
________________________
No. 07-12715
Non-Argument Calendar
________________________
D. C. Docket Nos. 04-01329-CV-J-25-MCR
01-00251-CR-J-2
ROBERT MACPHERSON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
No. 07-13087
Non-Argument Calendar
________________________
D. C. Docket No. 01-00251-CR-J-25MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM M. THOMAS,
Defendant-Appellant.
________________________
No. 07-13089
Non-Argument Calendar
________________________
D. C. Docket No. 01-00251-CR-J-25TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
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NOAH DWIGHT BAKER, SR.,
LINDA BAKER,
BRENDA S. PHENIS,
Defendants-Appellants.
________________________
No. 07-13092
Non-Argument Calendar
________________________
D. C. Docket Nos. 01-00251-CR-J-25MCR
04-01329-CV-J-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILEY RICHARD COUTURIER,
VICTOR E. MARCHITELLO,
GARY DAVID PINCUS,
ERIC POSNAN,
MICHAEL BERRY,
Defendants-Appellants.
________________________
No. 07-13097
Non-Argument Calendar
________________________
D. C. Docket No. 01-00251-CR-J-25MCR
UNITED STATES OF AMERICA,
3
Plaintiff-Appellee,
versus
PATRICK DORAN,
Defendant-Appellant.
________________________
No. 07-13650
Non-Argument Calendar
________________________
D. C. Docket Nos. 07-00478-CV-J-25-HTS
01-00251-CR-J-2
JAMES P. FAHERTY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
No. 07-13651
Non-Argument Calendar
________________________
D. C. Docket Nos. 07-00456-CV-J-25-HTS
01-00251-CR-J-2
DONALD M. HART,
4
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(August 5, 2008)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Robert Lloyd Pearl, Noah Dwight Baker, Sr., Linda Baker, Michael L.
Berry, Wiley Richard Couturier, Patrick Doran, James P. Faherty, Donald M. Hart,
Robert MacPherson, Victor E. Marchitello, Brenda S. Phenis, Gary David Pincus,
Eric Posnan, and William Mikey Thomas (collectively “appellants”) appeal from
the district court’s denial of their petitions for writ of error coram nobis, pursuant
to 28 U.S.C. § 1651(a). Prior to seeking this relief, the appellants had pleaded
guilty to conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371, which
was related to a scheme to embezzle and redeem winning pieces to promotional
games run by McDonald’s restaurants, and admitted that they had redeemed
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McDonald’s game pieces that were originally embezzled by Jerome P. Jacobson.
Following these guilty pleas, appellant Couturier was sentenced to a one-year and
one-day term of imprisonment, along with restitution, and the other appellants
were each sentenced to probation and restitution.
Although the appellants pleaded guilty, several of the other defendants
charged in the same indictment pleaded not guilty, proceeded to trial, and were
convicted. See United States v. Chandler, 388 F.3d 796 (11th Cir. 2004). We
reversed these convictions on appeal, holding that “the government must allege and
prove that the defendants knowingly entered into an agreement to commit an
unlawful act,” id. at 800 (emphases omitted), and that while the indictment did
allege an unlawful act, it did not allege that the defendants knew that the game
stamps had been stolen. Id. Based on Chandler, the appellants here sought and
were denied coram nobis relief, and now argue in this appeal that the district court
should have granted their petitions on grounds that: (1) the district court lacked
subject matter jurisdiction because there was a fundamental error in the indictment
in that it did not allege a crime; (2) the factual bases of their guilty pleas were
insufficient because the appellants did not plead guilty to criminal conduct; and (3)
their guilty pleas were not knowing and voluntary. After thorough review of the
briefs and record, we affirm.
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We review a district court’s denial of the writ of error coram nobis for an
abuse of discretion. Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000).
The writ of error coram nobis is a remedy available under the All Writs Act, 28
U.S.C. § 1651(a) to vacate a conviction when the petitioner has served his or her
sentence and is no longer in custody because “the results of the conviction may
persist . . . .” United States v. Peter, 310 F.3d 709, 712 (11th Cir. 2002) (citations
omitted). “The writ of error coram nobis is an extraordinary remedy of last resort
available only in compelling circumstances where necessary to achieve justice.”
United States v. Mills, 221 F.3d 1201, 1203 (11th Cir. 2000). The bar for coram
nobis is high and relief may issue only where: (1) “there is and was no other
available avenue of relief,” and (2) “when the error involves a matter of fact of the
most fundamental character which has not been put in issue or passed upon and
which renders the proceeding itself irregular and invalid.” Alikhani, 200 F.3d at
734 (internal quotation omitted). Furthermore, a district court may consider coram
nobis petitions only where the petitioner presents sound reasons for failing to seek
relief earlier. United States v. Morgan, 346 U.S. 502, 512 (1954) (holding that
where “no other remedy [is] available and sound reasons exist[] for failure to seek
appropriate earlier relief” a defendant’s motion for writ of coram nobis must be
heard by the federal court). “[T]he concern with finality served by the limitation
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on collateral attack has special force with respect to convictions based on guilty
pleas.” United States v. Timmreck, 441 U.S. 780, 784 (1979) (footnote omitted).
We first are unpersuaded that the district court abused its discretion in
denying their writ of error coram nobis on the ground that it lacked subject matter
jurisdiction due to a fundamental error in the indictment -- that is, that it did not
allege that the appellants knew the game pieces were stolen, as required by
Chandler. The elements of a conspiracy under 18 U.S.C. § 371 are (1) an
agreement among two or more persons to achieve an unlawful objective; (2) the
defendant’s knowing and voluntary participation in the agreement; and (3) an overt
act in furtherance of the agreement. United States v. Adkinson, 158 F.3d 1147,
1153 (11th Cir. 1998). “Mail fraud consists of the following elements: (1) an
intentional participation in a scheme to defraud a person of money or property, and
(2) the use of the mails in furtherance of the scheme.” United States v. Sharpe, 438
F.3d 1257, 1263 (11th Cir. 2006) (internal quotation omitted).
In Peter, 310 F.3d at 711, the defendant pleaded guilty to mail fraud,
admitting that he made misrepresentations in an application for a state liquor
license. However, a later decision by the U.S. Supreme Court held that the same
conduct to which Peter pleaded guilty was outside the reach of the mail fraud
statute because the statute required the object of the fraud to be “property,” and
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state and municipal licenses were not property. Id. We granted Peter’s petition for
writ of error coram nobis, holding that the district court lacked jurisdiction because
the indictment alleged only a non-offense. Id. at 715-16. We stated that “[t]he
problem is not that the Government’s case left unanswered a question as to
whether its evidence would encompass a particular fact or element,” but rather that
the government “affirmatively alleged a specific course of conduct that is outside
the reach of the mail fraud statute.” Id. at 715. In so holding, we distinguished
claims that a defendant had been charged in an indictment that alleged conduct that
was non-criminal, which was a jurisdictional defect, from claims involving
indictments with omissions, such as a missing element, which were not
jurisdictional. See id. at 714. Similarly, in United States v. Cotton, 535 U.S. 625,
630-31 (2002), the Supreme Court held that an indictment’s failure to allege an
essential element of an offense did not constitute a jurisdictional defect.
Here, the district court properly found that the indictment clearly alleged a
single conspiracy with two unlawful objects -- to steal McDonald’s game pieces
and redeem them by misrepresentations amounting to criminal fraud. This
conclusion is well supported by Chandler, which notably held that “[t]he
indictment did allege an unlawful act in the embezzlement of the game stamps.”
388 F.3d at 800. Thus, this case is unlike Peter, where the indictment charged
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conduct that, even if proven, did not constitute a criminal offense. Peter, 310 F.3d
at 715. Moreover, even if the indictment at issue here failed to allege an element
of the offense, such an omission would not divest the district court of subject
matter jurisdiction over the case. See id. at 714. Therefore, the district court did
not abuse its discretion in finding that it had subject matter jurisdiction over the
guilty pleas and denying the appellants’ writs of error coram nobis on this ground.
We next reject the appellants’ contention that the district court abused its
discretion in denying the writ of error coram nobis on the ground that their plea
agreements were defective and did not indicate that the appellants had pleaded
guilty to criminal conduct because the factual bases in the plea agreements did not
establish that the appellants were aware that the game pieces had been embezzled.
Even assuming that the possible insufficiency of the factual bases was a
“fundamental” error, the appellants did not challenge the indictment or their guilty
pleas until after we decided Chandler, and they have presented no sound reason for
failing to do so earlier. See Morgan, 346 U.S. at 512 (holding that where “no other
remedy [is] available and sound reasons exist[ ] for failure to seek appropriate
earlier relief” a defendant's motion for writ of error coram nobis must be heard by
the federal court). Indeed, the appellants’ limited appeal waivers did not prevent
them from challenging this issue on direct appeal, but rather, only implicated their
10
ability to appeal their sentences. Furthermore, that the appellants already filed §
2255 motions -- indicating that other avenues of relief are not currently available --
does not save the fact that these claims could have, and should have, been raised on
direct appeal. See Alikhani, 200 F.3d at 734 (holding that some of Alikahni’s
claims were not “facially . . . cognizable on coram nobis review” because they
could have been brought in a pretrial motion). In short, the appellants have not
established that they are entitled to the “extraordinary” remedy of coram nobis
relief on this ground. See Mills, 221 F.3d at 1203.
Lastly, we find no merit to the argument that the district court abused its
discretion in denying the writ of error coram nobis on the ground that the
appellants’ pleas were not knowing and voluntary because they did not know that
the government was required to prove that they had knowledge that the game
pieces were stolen, they received ineffective assistance of counsel, and the
government committed a violation pursuant to Brady v. Maryland, 373 U.S. 83
(1963). The Supreme Court has “strictly limited the circumstances under which a
guilty plea may be attacked on collateral review.” Bousley v. United States, 523
U.S. 614, 621 (1998). It has held that “the voluntariness and intelligence of a
guilty plea can be attacked on collateral review only if first challenged on direct
review.” Id.
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While coram nobis relief is available in some circumstances to those who
have pleaded guilty, it is not available to challenge the knowledge and
voluntariness of the plea itself when that issue has not been raised in an earlier
proceeding. Bousley, 523 U.S. at 621. Here, the appellants did not challenge the
intelligence or voluntariness of their guilty pleas on direct appeal. Moreover, as
noted above, the appellants have not presented “sound reasons” for failing to seek
relief earlier. See Morgan, 346 U.S. at 512. Accordingly, the district court did not
abuse its discretion in denying the writ on this ground, and the decision of the
district court is affirmed.
AFFIRMED.
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Donald M. Hart v. United States
Combined Opinion