United States Court of Appeals,
Eleventh Circuit.
No. 95-9556.
UNITED STATES of America, Plaintiff-Appellee,
v.
Patrick L. SWINDALL, Defendant-Appellant.
March 14, 1997.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:88-CR-477), G. Ernest Tidwell, Chief
Judge.
Before BLACK, Circuit Judge, RONEY and HILL, Senior Circuit Judges.
PER CURIAM:
Appellant Patrick L. Swindall appeals the district court's
denial of his pro se petition collaterally challenging his
convictions on six counts of perjury. We affirm.
I. BACKGROUND
A more comprehensive statement of the facts is set forth in
this Court's opinion in United States v. Swindall, 971 F.2d 1531,
1534-39 (11th Cir.1992). Over seven years ago in June 1989, a jury
convicted Appellant on nine counts of making false material
declarations before a grand jury, in violation of 18 U.S.C. § 1623.
The indictment charged that Appellant had discussed
money-laundering transactions with an undercover agent and an
intermediary and then falsely testified to a grand jury to conceal
the extent of his involvement in these discussions. He was
sentenced to concurrent terms of twelve months' imprisonment on
each count and fined $30,000. Appellant appealed his conviction
and subsequently filed two motions in the district court asserting
that the prosecution's suppression of favorable evidence entitled
him to either dismissal of the indictment or a new trial.1 On
August 31, 1992, we affirmed his convictions on six of nine counts,
but reversed convictions on three counts on Speech or Debate Clause
grounds. United States v. Swindall, 971 F.2d 1531 (11th Cir.1992).
In the same appeal, we also affirmed the district court's denial of
Appellant's motions for dismissal or new trial. The Supreme Court
denied certiorari on January 10, 1994. Swindall v. United States,
510 U.S. 1040, 114 S.Ct. 683, 126 L.Ed.2d 650 (1994).
On January 13, 1994, Appellant filed a motion under 28 U.S.C.
§ 2255, asserting, as he had done previously, that the
prosecution's suppression of favorable evidence entitled him to
either dismissal of the remaining six counts of conviction or a new
trial.2 The district court denied the motion, and we affirmed.
United States v. Swindall, 38 F.3d 574 (11th Cir.1994). Appellant
completed service of his sentence in early 1995.
On September 6, 1995, Appellant filed a petition pursuant to
28 U.S.C. § 1651(a) seeking a writ of error coram nobis, arguing
that his convictions should be vacated because of the Supreme
Court's decision in United States v. Gaudin, --- U.S. ----, 115
S.Ct. 2310, 132 L.Ed.2d 444 (1995). The Gaudin decision
invalidated the longstanding rule that the issue of materiality in
false statement prosecutions is a question of law for the court,
holding that it is a violation of the Fifth and Sixth Amendments
1
These motions were filed pursuant to Rule 33 of the Federal
Rules of Criminal Procedure.
2
Appellant was represented by counsel in his § 2255 motion.
not to submit that question to the jury. Id. at ----, 115 S.Ct. at
2314. Appellant's trial concluded well before the Gaudin opinion
was issued on June 19, 1995. At trial, the judge followed the rule
then in effect in the Eleventh Circuit and decided the issue of
materiality without submitting that question to the jury.
Appellant did not object to the court's determination of
materiality either at trial or on direct appeal.3 The district
court denied Appellant's § 1651(a) petition for a writ of error
coram nobis, holding that his claim was barred by Teague v. Lane,
489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), as well as
procedurally defaulted because of his failure to object at trial or
raise the issue on appeal. The instant appeal followed.
II. STANDARD OF REVIEW
A Teague issue is purely one of law, and this Court reviews
the district court's decision of it de novo. Spaziano v.
Singletary, 36 F.3d 1028, 1041 (11th Cir.1994), cert. denied, ---
U.S. ----, 115 S.Ct. 911, 130 L.Ed.2d 793 (1995). The district
court's application of the cause and prejudice standard to
procedural default issues is reviewed de novo. Macklin v.
Singletary, 24 F.3d 1307, 1312-13 (11th Cir.1994), cert. denied, --
- U.S. ----, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995). The standard
of review applicable to abuse of the writ issues is de novo as
well. Id. at 1313.
III. DISCUSSION
A. Writ of Error Coram Nobis
3
Nor did the Appellant raise the issue in his § 2255 motion.
Federal courts have authority to issue a writ of error coram
nobis under the All Writs Act, now codified as 28 U.S.C. § 1651(a).
The writ of error coram nobis is a limited remedy of last resort:
"Continuation 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." United States v. Morgan, 346 U.S. 502,
511, 74 S.Ct. 247, 252, 98 L.Ed. 248 (1954); see Lowery v. United
States, 956 F.2d 227, 228-29 (11th Cir.1992); Moody v. United
States, 874 F.2d 1575, 1576-77 (11th Cir.1989), cert. denied, 493
U.S. 1081, 110 S.Ct. 1137, 107 L.Ed.2d 1042 (1990); Rener v.
United States, 475 F.2d 125, 127 (5th Cir.1973) (writ should be
allowed only to "remedy manifest injustice").
In this case, Appellant attempts to do what the Supreme Court
in Morgan instructed should be allowed in only the most compelling
circumstances. Appellant seeks to continue litigating the legality
of his conviction after his conviction has become final and he has
exhausted his statutory right of review under 28 U.S.C. § 2255.
The Supreme Court addressed the same concerns in Teague v. Lane,
489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), where it held
that a case decided after a petitioner's conviction and sentence
became final generally may not be the basis for vacating that
conviction. See also Stringer v. Black, 503 U.S. 222, 227, 112
S.Ct. 1130, 1135, 117 L.Ed.2d 367 (1992); Spaziano, 36 F.3d at
1042. The Supreme Court explained that the application of
constitutional rules not in existence at the time a conviction
became final seriously undermines the principle of finality which
is essential to the operation of our legal justice system. Teague,
489 U.S. at 309, 109 S.Ct. at 1074. In Teague, the Supreme Court
accommodated the competing demands of respecting good faith
interpretations of existing law and assuring that individuals are
not punished in a manner inconsistent with the Constitution by
creating two narrow situations where new rules will be applied
retroactively. Id. at 305-10; 109 S.Ct. at 1073-75. Consistent
with these principles, we hold that if Teague bars a petitioner's
claim relying on a case decided after his conviction and sentence
became final, then he has not suffered such compelling injustice
that would deserve relief pursuant to a writ of error coram nobis.
In other words, if Appellant's claim is Teague-barred, then it is
clearly outside the extremely limited scope of a writ of error
coram nobis.
B. Teague
The Supreme Court has directed federal courts to use three
steps in determining whether a claim is Teague-barred:
1. Whether the Teague rule is applicable, i.e., whether
petitioner's conviction became final before the case upon
which he relies was announced.4
4
While the Supreme Court has applied the Teague rule only in
collateral challenges to state convictions, Teague applies
equally in collateral challenges to federal convictions.
Elortegui v. United States, 743 F.Supp. 828, 831 (S.D.Fla.1990),
aff'd mem., 943 F.2d 1317 (11th Cir.1991), cert. denied, 502 U.S.
1116, 112 S.Ct. 1229, 117 L.Ed.2d 464 (1992). Two circuits have
explicitly held that Teague applies in challenges to federal
convictions. Van Daalwyk v. United States, 21 F.3d 179, 181-83
(7th Cir.1994); Gilberti v. United States, 917 F.2d 92, 94-95
(2d Cir.1990). Four circuits have applied Teague in challenges
to federal convictions without discussion. Taylor v. United
States, 985 F.2d 844, 847 (6th Cir.1993); United States v.
Pavlico, 961 F.2d 440, 443 (4th Cir.), cert. denied, 506 U.S.
848, 113 S.Ct. 144, 121 L.Ed.2d 96 (1992); United States v.
Judge, 944 F.2d 523, 525 (9th Cir.1991), cert. denied, 506 U.S.
2. Whether the case upon which the petitioner relies announced a
"new rule."5
3. Whether either of two exceptions to the non-retroactivity of a
new rule is applicable.
Caspari v. Bohlen, 510 U.S. 383, 389-90, 114 S.Ct. 948, 953, 127
L.Ed.2d 236 (1994); Spaziano, 36 F.3d at 1042.
1. Whether Appellant's Conviction Was Final Before Gaudin Was
Issued
Appellant's conviction became final when the Supreme Court
denied certiorari on January 10, 1994, more than a year before
Gaudin was announced. The Teague rule is therefore applicable.
2. Whether Gaudin Announced a "New Rule"
A new rule is one that "breaks new ground or imposes a new
obligation on the States or the Federal Government." Teague, 489
U.S. at 301, 109 S.Ct. at 1070. "To put it differently, a case
announces a new rule if the result was not dictated by precedent
existing at the time the defendant's conviction became final." Id.
Prior to Gaudin, it was well established in the Eleventh
Circuit that materiality is a question of law. United States v.
Kramer, 73 F.3d 1067, 1074 (11th Cir.), cert. denied, --- U.S. ----
, 117 S.Ct. 516, 136 L.Ed.2d 405 (1996). In fact, every circuit
except the Federal Circuit had held that judges should decide the
materiality of false statements made to a grand jury under 18
833, 113 S.Ct. 101, 121 L.Ed.2d 60 (1992); United States v.
Ayala, 894 F.2d 425, 429 n. 8 (D.C.Cir.1990).
5
"If however, the decision did not announce a new rule, it
is necessary to inquire whether granting the relief sought would
create a new rule because the prior decision is applied in a
novel setting, thereby extending the precedent." Stringer, 503
U.S. at 228, 112 S.Ct. at 1135. We need not address this issue
because we hold that Gaudin announced a new rule.
U.S.C. § 1623. United States v. Gaudin, 28 F.3d 943, 957-58 (9th
Cir.1994) (en banc) (Kozinski, J., dissenting) (collecting cases),
aff'd, --- U.S. ----, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995).
Federal courts had relied on Sinclair v. United States, 279 U.S.
263, 49 S.Ct. 268, 73 L.Ed. 692 (1929), for the proposition that
materiality is a question of law for the judge. See id. at 298, 49
S.Ct. at 273 (holding that the question of pertinency was "rightly
decided by the court as one of law"). The result in Gaudin
required the Supreme Court to repudiate its previous position in
Sinclair. Gaudin, --- U.S. at ----, 115 S.Ct. at 2318-19. At the
time of Appellant's trial, the result in Gaudin was not dictated by
precedent because the district court's decision to consider the
issue of materiality a legal issue for the court to decide was
clearly a "reasonable, good-faith interpretation[ ] of existing
precedents." Butler v. McKellar, 494 U.S. 407, 413, 110 S.Ct.
1212, 1217, 108 L.Ed.2d 347 (1990). The Supreme Court's rejection
of settled law broke new ground, and therefore, Gaudin announced a
new rule within the meaning of Teague.
3. Whether Either Of Two Exceptions To The Teague Rule Is
Applicable
The first exception to the Teague rule is limited to rules
that place a class of private conduct beyond the power of the
government to proscribe, Teague, 489 U.S. at 311, 109 S.Ct. at
1075, or remove a class of defendants from a certain type of
punishment, Sawyer v. Smith, 497 U.S. 227, 241, 110 S.Ct. 2822,
2831, 111 L.Ed.2d 193 (1990), and it does not apply. The second
exception involves new "watershed rules of criminal procedure
implicating the fundamental fairness and accuracy of the criminal
proceedings." Caspari, 510 U.S. at 396, 114 S.Ct. at 956 (internal
quotation marks omitted). In order for a rule to fall within the
second exception, it "must not only improve accuracy [of trial],
but also alter our understanding of the bedrock procedural elements
essential to the fairness of a proceeding." Sawyer, 497 U.S. at
242, 110 S.Ct. at 2831 (internal quotation marks omitted). The
second exception is extremely narrow:
The Supreme Court has underscored the narrowness of this
second exception by using as a prototype the rule of Gideon v.
Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963),
and by noting that "we believe it unlikely that many such
components of basic due process have yet to emerge." The
Court has further underscored the narrowness of the second
Teague exception by its actions. Beginning with Teague, the
Court has examined at least seven new rules of law against the
second exception and found that none of them fit[s] within its
narrow confines.
Spaziano, 36 F.3d at 1043 (citations omitted).
Appellant's position is that our decision in Nutter v. White,
39 F.3d 1154 (11th Cir.1994), requires us to hold that Gaudin's new
rule falls within Teague 's second exception. In Nutter, we held
that the rule of Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112
L.Ed.2d 339 (1990) (per curiam), that certain incorrect jury
instructions on the "beyond a reasonable doubt" standard allow the
jury to convict the defendant on a lower burden of proof in
violation of due process, fell within the second exception.
Nutter, 39 F.3d at 1157-58. We noted that theCage rule implicated
the accuracy of a conviction because the "beyond a reasonable
doubt" standard guards against conviction of the innocent. Nutter,
39 F.3d at 1157. When a jury convicts under an incorrect
reasonable doubt instruction, it may mistakenly convict an innocent
defendant. By contrast, "[t]he harm to be corrected by Gaudin was
not the inaccuracy of the decision; rather, the problem to be
corrected was that the wrong entity was making the decision."
United States v. Holland, 919 F.Supp. 431, 435 (N.D.Ga.1996).6 The
Supreme Court never suggested in Gaudin that judges' rulings on
materiality during the years in which the Sinclair rule prevailed
were incorrect. Moreover, Appellant does not assert that the judge
used a less exacting standard than "beyond a reasonable doubt" in
its determination that the false statements were material, which
would implicate the accuracy of the materiality finding. See
Gaudin, --- U.S. at ---- n. 1, 115 S.Ct. at 2313 n. 1 (noting that
some courts which regard materiality as a legal question for the
judge do not require beyond a reasonable doubt burden of proof).
The fact that the Gaudin rule does not improve the accuracy of the
trial is sufficient to render Teague 's second exception
inapplicable. The Gaudin rule, which reallocates factfinding from
judge to jury on the single issue of materiality, is not a
watershed rule of criminal procedure that alters our understanding
of the bedrock procedural elements essential to the fairness of a
proceeding. Under the Teague analysis, Gaudin's new rule will not
be applied retroactively to support Appellant's claim.
Consequently, Appellant has not suffered such injustice that would
require relief under a writ of error coram nobis.
C. Procedural Default
The district court found Appellant's claim to be both
6
In Holland, the district court reached the same conclusion
as we do in this case that on collateral review, Gaudin's new
rule does not apply retroactively to a defendant whose perjury
conviction became final before Gaudin was announced. Holland,
919 F.Supp. at 433-35.
Teague-barred and procedurally defaulted for his failure to object
to the court's determination of materiality either at trial or on
direct appeal. We need not decide whether the district court was
correct in its determination that Appellant's claim is procedurally
defaulted. If the claim were not Teague-barred, the initial
determination would be whether it could even be brought under a
writ of error coram nobis. If Appellant's claim could be
maintained under a writ of error coram nobis, Appellant would be
required to show cause and prejudice for his procedural default.
United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594,
71 L.Ed.2d 816 (1982).7
IV. CONCLUSION
Appellant has failed to demonstrate that he is entitled to
relief on his petition collaterally challenging his convictions on
six counts of perjury.
AFFIRMED.
7
We note that Appellant may have abused the writ in not
asserting his present claim in his previous § 2255 motion. The
abuse of the writ defense applies to a writ of error coram nobis
successively brought after a § 2255 motion. In this case, the
Government chose not to plead abuse of the writ in the district
court, and the district court did not address the issue.