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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-13770
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS F. SPELLISSY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:05-cr-00475-JDW-TGW-1
____________________
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2 Opinion of the Court 23-13770
Before JILL PRYOR, BRANCH, and MARCUS, Circuit Judges.
PER CURIAM:
Thomas F. Spellissy, a former federal prisoner no longer in
custody, appeals the district court’s order denying his pro se peti-
tion for writ of error coram nobis. He argues that: (1) based on the
Supreme Court’s recent decisions in Percoco v. United States, 598
U.S. 319 (2023), and Ciminelli v. United States, 598 U.S. 306 (2023),
the conduct for which he was charged and convicted of is no
longer proscribed; (2) his convictions are invalid based on McDon-
nell v. United States, 579 U.S. 550 (2016), and Skilling v. United
States, 561 U.S. 358 (2010), as he’s already argued in prior appeals;
and (3) he was factually innocent because the government offered
no evidence showing that he conspired to commit bribery, or
honest-services wire fraud, to obtain money or property. After
thorough review, we affirm.
We review a district court’s denial of a petition for writ of
error coram nobis for abuse of discretion, “keeping in mind that an
error of law is an abuse of discretion per se.” United States v. Peter,
310 F.3d 709, 711 (11th Cir. 2002) (quotations omitted).
The All Writs Act, 28 U.S.C. § 1651(a), provides federal
courts with the authority to issue writs of error coram nobis. Unit-
ed States v. Mills, 221 F.3d 1201, 1203 (11th Cir. 2000). A writ of
error coram nobis is a remedy to vacate a conviction and is availa-
ble, unlike relief under 28 U.S.C. § 2255, when the petitioner has
served his sentence and is no longer in custody. Peter, 310 F.3d at
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23-13770 Opinion of the Court 3
712. The coram nobis writ is an extraordinary remedy that is only
available “in compelling circumstances where necessary to
achieve justice.” Mills, 221 F.3d at 1203.
A court can only provide coram nobis relief if: (1) no other
avenue of relief is available or has been available; and (2) the peti-
tioner presents a fundamental error that made the proceedings
irregular and invalid. Alikhani v. United States, 200 F.3d 732, 734
(11th Cir. 2000). The Supreme Court has told us that an error is
sufficiently fundamental to make the proceedings irregular and
invalid when, for example, “a defendant whose original sentence
had been imposed at least in part upon the basis of convictions
secured without the assistance of counsel” -- in other words,
where there was “misinformation of constitutional magnitude.”
United States v. Addonizio, 442 U.S. 178, 187 (1979). Similarly, a ju-
risdictional error is, by its nature, of such a fundamental character
as to render proceedings irregular and invalid; this is because
“[w]hen a court without jurisdiction convicts and sentences a de-
fendant, the conviction and sentence are void from their incep-
tion and remain void long after a defendant has fully suffered
their direct force.” Peter, 310 F.3d at 715 (quotations omitted).
The coram nobis writ also requires that the alleged error
must be one that has not been “put in issue or passed upon.”
Moody v. United States, 874 F.2d 1575, 1576 (11th Cir. 1989). This
requirement is consistent with the law-of-the-case doctrine, under
which both district and appellate courts are generally bound to
follow a prior appellate decision in the same case. Thomas v. Unit-
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4 Opinion of the Court 23-13770
ed States, 572 F.3d 1300, 1303 (2009). The law-of-the-case doctrine
“generally operates to preclude a reexamination of issues decided
upon appeal, either by the district court on remand or by the ap-
pellate court itself upon a subsequent appeal.” Westbrook v. Zant,
743 F.2d 764, 768 (11th Cir. 1984) (quotations omitted).
Under 18 U.S.C. § 1343, it is illegal for any person to devise,
or intend to devise, a scheme to defraud, or obtain money or
property by means of false or fraudulent pretenses, via wire.
18 U.S.C. § 1343. Under 18 U.S.C. § 1346, the term “scheme” in-
cludes a scheme to deprive someone of the “intangible right of
honest services.” 18 U.S.C. § 1346.
In Percoco, a private citizen was convicted of hon-
est-services wire fraud, in violation of 18 U.S.C. §§ 1343, 1346, and
1349, based on conduct that occurred during an 8-month break in
his employment at the New York governor’s office. Percoco, 598
U.S. at 322–23. During his hiatus, Percoco accepted a bribe from
a real estate developer to assist the developer with obtaining state
funding on a project. Id. at 323. At trial, the court instructed the
jury that Percoco had a duty to provide honest services to the
public if (1) he “dominated and controlled any governmental
business,” and (2) government officials relied on him because of
his special relationship with the government. Id. at 324–25. On
certiorari review, the Supreme Court reversed and remanded. Id.
at 333. It held that the district court’s jury instruction on the duty
to provide honest services was erroneously vague, and the result-
ing error was not harmless. Id. at 330–32. However, the Supreme
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23-13770 Opinion of the Court 5
Court rejected Percoco’s argument that a private citizen can nev-
er be convicted of honest-services fraud, reasoning that citizens
can serve as agents of the government. Id. at 329. It explained
that, because “an agent of the government has a fiduciary duty to
the government and thus to the public it serves . . . individuals
who are delegated authority to act on behalf of a public official
and to perform government duties have a duty to provide honest
services.” Id. at 329–30 (quotations omitted).
In Ciminelli, the defendant, a private citizen, and others,
were convicted of wire fraud, in violation of 18 U. S. C. § 1343,
and conspiracy to commit the same under § 1349, based on a bid-
rigging scheme that enabled Ciminelli’s construction company to
win bids for state-funded projects, which were administered by a
nonprofit organization. 598 U.S. at 310. In the operative indict-
ment, and at trial, the government relied solely on the Second
Circuit’s right-to-control theory of wire fraud, which enabled the
government to establish wire fraud by showing that Ciminelli
schemed to deprive a victim of “potentially valuable economic
information necessary to make discretionary economic deci-
sions.” Id. Consistent with that theory of liability, the district
court instructed the jury that, under § 1343, the term “property”
included “intangible interests, such as the right to control the use
of one’s assets.” Id. at 311. Thus, the jury could find that Ci-
minelli harmed the nonprofit’s right to control its assets if the
nonprofit was deprived of “potentially valuable economic infor-
mation that it would consider valuable in deciding how to use its
assets.” Id.
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6 Opinion of the Court 23-13770
On certiorari review, the Supreme Court reversed and re-
manded, holding that the Second Circuit’s right-to-control theory
could not form the basis for a conviction of fraud under federal
law because “[t]he right to valuable economic information needed
to make discretionary economic decisions [wa]s not a traditional
property interest.” Id. at 316–17. The Supreme Court, however,
re-affirmed that the intangible right of honest services constituted
a protected property interest, noting that Congress included the
“intangible right of honest services” in 18 U.S.C. § 1346. Id. at
313, 315.
Here, the district court did not abuse its discretion by deny-
ing Spellissy’s petition for writ of error coram nobis. For starters,
Spellissy’s arguments based on McDonnell and Skilling were previ-
ously raised and rejected by this Court, and he has not shown ei-
ther that controlling authority has since made a contrary decision,
or that the previous decisions were clearly erroneous. See Thom-
as, 572 F.3d at 1303; see also Westbrook, 743 F.2d at 768. As for
Spellissy’s argument that he was factually innocent, he has not set
forth any new evidence or cited any authority showing that the
conduct, for which he was charged and convicted of, is no longer
proscribed. See Peter, 310 F.3d at 711, 715.
Moreover, we find no merit to Spellissy’s argument that
Percoco and Ciminelli established a fundamental error rendering his
criminal proceeding irregular or invalid, because Spellissy’s jury
instructions did not contain the flawed instructions or legal theo-
ries at issue in those cases. Unlike in Percoco, the jury at Spellissy’s
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23-13770 Opinion of the Court 7
trial was not instructed that a private citizen could be convicted of
honest-services wire fraud if he “dominated and controlled” gov-
ernment business. Rather, Spellissy’s indictment alleged -- and
the district court correctly found -- that William E. Burke, a pri-
vate contractor employee to whom Spellissy made illegal pay-
ments and who was an employee of a private contractor assigned
to a division of the United States Special Operations Command,
was a public official, acting on behalf of the Department of De-
fense. See United States v. Spellissy, 710 F. App’x 392, 393 (11th Cir.
2017) (unpublished); United States v. Spellissy, 243 F. App’x 550,
550–51 (11th Cir. 2007) (unpublished). Thus, the district court’s
instruction -- that the definition of public official “includes an em-
ployee of a private corporation who acts for or on behalf of the
federal government pursuant to a contract” -- was in line with the
traditional agency theory that Percoco expressly acknowledged as
valid. 598 U.S. at 329–30. Further, the district court’s instruction
that public officials “owe a duty to the public to act in the public’s
best interest,” and if an official “makes his decision based on [his]
own personal interests -- such as accepting a bribe -- the official
has defrauded the public of the official’s honest services,” also
conformed with the Supreme Court’s reasoning that agents of the
government have a duty to provide honest services. Id. So, unlike
in Percoco, Spellissy’s jury instructions did not violate his due pro-
cess rights by being too vague. Id.
Finally, unlike in Ciminelli, the government’s theory of lia-
bility was not the right to control the right to “valuable economic
information needed to make discretionary economic decisions”--
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8 Opinion of the Court 23-13770
which the Supreme Court held was not a traditional property in-
terest that could form the basis of a fraud conviction. See Ci-
minelli, 598 U.S. at 316–17. Instead, Spellissy was charged and
convicted of conspiring to bribe a public official in an attempt to
deprive the public of the right to the official’s honest services.
Contrary to Spellissy’s assertion, Ciminelli expressly recognized
that the “intangible right of honest services” is a statutorily pro-
tected property interest. 18 U.S.C. § 1346; Ciminelli, 598 U.S. at
313, 315. Therefore, the jury instructions on honest services in
Spellissy’s case provided the jury with the requisite clarity and
guidance about what conduct was proscribed. See Percoco, 598
U.S. at 331. And neither Percoco nor Ciminelli had the retroactive
effect of rendering the conduct, for which Spellissy was charged
and convicted of, non-criminal. See Peter, 310 F.3d at 711, 715.
AFFIRMED.