United States v. John C. Mandanici, Jr.

KEARSE, Circuit Judge,

concurring:

I concur in the majority opinion and the judgment. I write separately to state my view that even absent Teague considerations, coram nobis relief would be inappropriate in this case.

*532An important difference between habeas relief and coram nobis lies in the fact that, because the latter comes after the petitioner has completed his sentence, the petitioner will not be retried; thus, the granting of coram nobis normally results in the expungement of the conviction, with no possibility of further proceedings to determine whether the petitioner was guilty of the offense charged. Accordingly, it has long been held that in order to obtain coram nobis relief a petitioner must show an error that “compelfs] ... action to achieve justice.” United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 98 L.Ed. 248 (1954); see, e.g., Fleming v. United States, 146 F.3d 88, 90 (2nd Cir.1998); Foont v. United States, 93 F.3d 76, 79 (2nd Cir.1996); Nicks v. United States, 955 F.2d 161, 167 (2nd Cir.1992).

In the present case, the error is that an element of the offense was found established by a preponderance of the evidence, rather than beyond a reasonable doubt. A preponderance means more likely than not. The element was the materiality of false statements made by petitioner Man-danici in connection with obtaining payment for services on a federally funded construction contract. There is not contention in this petition that the evidence was not sufficient to establish materiality by a preponderance. (And the reason may be found in our opinion affirming on the two counts of conviction at issue here. See United States v. Mandanici, 729 F.2d 914, 920 (2nd Cir.1984)(noting that the record showed not only that Mandanici has represented that the construction project was completed though it was not, but also that he had “submitted false documentation of his purported expenditures with respect to nearly every task detailed in” the contract’s work specification); id. at 921 (noting that there was “ample proof’ to permit a jury to find “that Mandanici had no intention of ever completing the agreed-upon work”).)

Nor is there any suggestion here that a standard below that of preponderance was used. Thus, the consequences of granting a writ of coram nobis in this case would be to expunge, without possibility of reinstatement, the conviction of a person who more likely than not committed the offenses of which he stands convicted. In my view, the granting of coram nobis in such a circumstance would not properly be characterized as necessary to “achieve justice.”