US v. Randall Conrad

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:04-cr-00297-NCT-1,1:07-cv-00313-NCT-WWD Copies to all parties and the district court/agency. [1000003397]. Mailed to: R Conrad. [16-6579]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6579

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RANDALL LEE CONRAD,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge. (1:04-cr-00297-NCT-1; 1:07-cv-00313NCT-WWD)

Submitted:

December 21, 2016

Decided:

January 13, 2017

Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Randall Lee Conrad, Appellant Pro Se. Robert Michael Hamilton,
Angela Hewlett Miller, Assistant United States Attorneys,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Randall Lee Conrad seeks to appeal the district court’s order
accepting the recommendation of the magistrate judge and denying
his Fed. R. Civ. P. 60(d) motion for reconsideration of the
district court’s order denying relief on his 28 U.S.C. § 2255
(2012) motion.

The order is not appealable unless a circuit

justice or judge issues a certificate of appealability.

28 U.S.C.

§ 2253(c)(1)(B) (2012); United States v. McRae, 793 F.3d 392, 398
(4th Cir. 2015).

A certificate of appealability will not issue

absent “a substantial showing of the denial of a constitutional
right.”

28 U.S.C. § 2253(c)(2) (2012).

When the district court

denies relief on the merits, a prisoner satisfies this standard by
demonstrating that reasonable jurists would find that the district
court’s assessment of the constitutional claims is debatable or
wrong.

Slack

v.

McDaniel,

529

U.S.

473,

484

(2000);

Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).

see

When the

district court denies relief on procedural grounds, the prisoner
must demonstrate both that the dispositive procedural ruling is
debatable, and that the motion states a debatable claim of the
denial of a constitutional right.
We

conclude

that

a

Slack, 529 U.S. at 484-85.

certificate

of

appealability

is

not

warranted, as reasonable jurists would not find it debatable that

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Conrad’s claim of fraud on the court was without merit. *

First,

Conrad failed to establish that trial counsel actually engaged in
fraud.
is

In that regard, we agree with the district court that there

insufficient

evidence

to

establish

that

the

misstatements

contained in trial counsel’s affidavit are anything other than
unintentional mistakes.
Even assuming that counsel’s misstatements were sufficient to
constitute fraud, the misstatements that Conrad complains of would
not rise to the level of fraud on the court.

Where a Rule 60

motion is premised on fraud on the court, proof of “garden-variety
fraud” is insufficient.

Fox ex rel. Fox v. Elk Run Coal Co., 739

F.3d 131, 135 (4th Cir. 2014).

Rather, relief under Rule 60(d)(3)

is only available where the fraud involves “an intentional plot to
deceive the judiciary [and] . . . touch[es] on the public interest
in a way that fraud between individual parties generally does not.”
Id. at 136.
We have emphasized that even “perjury and fabricated evidence
. . . which [a]re reprehensible and unquestionable evils, [a]re
not adequate to permit relief as fraud on the court because the
legal system encourages and expects litigants to root them out as

*

Because Conrad does not challenge the district court’s
conclusion that any motion filed pursuant to Rule 60(b)(3) is
time-barred, he has waived review of that ruling.
4th Cir. R.
34(b).
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early as possible.” Id. (internal quotation marks omitted). Thus,
fraud on the court “is limited to situations such as bribery of a
judge or juror, or improper influence exerted on the court by an
attorney, in which the integrity of the court and its ability to
function

impartially

is

directly

impinged.”

Id.

(internal

quotation marks omitted).
We have previously stated that “fraud upon the court includes
. . . fraud by an officer of the court, including an attorney.”
In re Genesys Data Techs., Inc., 204 F.3d 124, 130 (4th Cir. 2000).
This would, at first blush, appear to support Conrad’s position.
However, we have clarified in other cases that “[a]lthough perjury
by a witness will not suffice, the involvement of an attorney, as
an officer of the court, in a scheme to suborn perjury” constitutes
fraud on the court. Cleveland Demolition Co. v. Azcon Scrap Corp.,
a Div. of Gold Fields Am. Indus., 827 F.2d 984, 986 (4th Cir.
1987).
Thus,
perpetrated

we
by

have
an

deliberately
attorney

who

differentiated
is

actively

between

fraud

participating

in

proceedings before a court, and fraud perpetrated by a mere witness
providing evidence to that court.
by

an

officer

of

the

court,

This is because fraud committed

actively

participating

in

court

proceedings, renders “the judicial machinery [unable to] perform
in the usual manner its impartial task of adjudging cases that are
presented for adjudication.”

Great Coastal Exp., Inc. v. Int’l
4

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Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 675
F.2d

1349,

1356

(4th

Cir.

1982).

Moreover,

fraud

in

those

instances “cannot necessarily expect to be exposed by the normal
adversary process.”

Id. at 1357.

In contrast, fraud committed by a witness who happens to be
an attorney does not elevate perjury to the level of fraud on the
court because the danger that a party’s fraud would corrupt the
judicial process simply is not present. Without a concerted effort
by both a witness and opposing counsel to commit and conceal fraud,
the adversarial process is ordinarily sufficient to uncover the
fraud.

In these cases fraud by an attorney-witness does not

subvert the “public interest in a way that fraud between individual
parties generally does not” and does not rise to the level of fraud
on the court.

Fox, 739 F.3d at 136.

Here, trial counsel acted

only as a witness when he submitted his affidavit, alleviating any
concern that the judicial process would be corrupted by any alleged
fraud.

Indeed,

misstatements,
adversarial

Conrad

was

demonstrating

process

was

not

able

that

the

to

discover

counsel’s

proper

function

of

The

district

court’s

impinged.

the

conclusion that Conrad failed to demonstrate fraud on the court
therefore was not debatable or wrong.
Accordingly,

we

dismiss the appeal.
facts

and

legal

deny

a

certificate

of

appealability

and

We dispense with oral argument because the

contentions

are
5

adequately

presented

in

the

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materials

before

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this

court

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and

argument

would

not

aid

the

decisional process.
DISMISSED

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