Viertel v. USA

Filing 12

MEMORANDUM OPINION AND ORDER. This is an application for a writ of error coram nobis brought by the defendant, Christian Viertel ("Viertel"), pursuant to 28 U.S.C. Section 1651. Viertel asserts that the jurisdictional element of the wire fr aud charge for which he was convicted on October 2, 2002 was never established, and therefore that the conviction must be vacated. For the reasons explained below, the application is denied.... Conclusion: The Court has considered all of the argument s raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. Viertel's application for a writ of error coram nobis is denied. The Clerk is directed to close Docket No. 282. SO ORDERED. (Signed by Judge John G. Koeltl on 5/8/2012) [*** NOTE: Also docketed in related Criminal Case 01-cr-571-3(JGK), see Doc.#283. Doc.#282 is in Criminal Case. ***] (bw)

United States District Court
Southern District of New York
__________________________________
UNITED STATES OF AMERICA,
- against -

01 Cr. 571-3 (JGK)
08 Civ. 7512 (JGK)

CHRISTIAN VIERTEL,
MEMORANDUM OPINION AND
ORDER

Defendant.
__________________________________
CHRISTIAN VIERTEL,
Petitioner,
- against UNITED STATES OF AMERICA,
Respondent.
__________________________________
JOHN G. KOELTL, District Judge:

This is an application for a write of error coram nobis
brought by the defendant, Christian Viertel (“Viertel”),
pursuant to 28 U.S.C. § 1651.

Viertel asserts that the

jurisdictional element of the wire fraud charge for which he was
convicted on October 2, 2002 was never established, and
therefore that the conviction must be vacated.

For the reasons

explained below, the application is denied.

I.
“[F]ederal courts are authorized to grant the ancient
common law writ of error coram nobis under the terms of the All
Writs Act, 28 U.S.C. § 1651(a).”

Fleming v. United States, 146

F.3d 88, 89 (2d Cir. 1998) (per curiam).

1

When a defendant has

served the entirety of the defendant’s sentence pursuant to a
federal conviction, and is no longer in custody pursuant to that
conviction, a defendant’s application to vacate the conviction
because of an error is properly treated as an application for a
writ of error coram nobis.

See, e.g., Porcelli v. United

States, 404 F.3d 157, 159 (2d Cir. 2005); see generally Fleming,
146 F.3d at 89-90 (“Coram nobis is essentially a remedy of last
resort for petitioners who are no longer in custody

pursuant to

a criminal conviction and therefore cannot pursue direct review
or collateral relief by means of a writ of habeas corpus.”).

In

this case, Viertel asserts, and the Government does not contest,
that he is no longer in custody.

Moreover, Viertel explicitly

styled the current application as an application pursuant to the
28 U.S.C. § 1651.
Coram Nobis relief is an extraordinary remedy.

“[T]o

obtain coram nobis relief a petitioner must demonstrate that ‘1)
there are circumstances compelling such action to achieve
justice, 2) sound reasons exist for failure to seek appropriate
earlier relief, and 3) the petitioner continues to suffer legal
consequences from his conviction that may be remedied by
granting of the writ.’”

Fleming, 146 F.3d at 90 (quoting Foont

v. United States, 93 F.3d 76, 78 (2d Cir. 1996)).

“In reviewing

a petition for the writ, a federal court must ‘presume the
proceedings were correct. The burden of showing otherwise rests
2

on the petitioner.’”

Id. (quoting Nicks v. United States, 955

F.2d 161, 167 (2d Cir. 1992)).

II.
Viertel has failed to show that there are circumstances
compelling coram nobis relief in order to achieve justice in
this case.
Viertel argues the Government never established at his
trial the jurisdictional, “interstate” element of the mail fraud
statute, 18 U.S.C. § 1341.
At trial, the jury in this case was instructed correctly
that, with respect to the mail fraud statute, “the government
must establish beyond a reasonable doubt . . . the use of the
mails in furtherance of the scheme to defraud.

The use of the

mails as I have used it here includes material sent through
either the United States Postal Service or a private or
interstate carrier.”

(Trial Tr. at 1992); see also 18 U.S.C. §

1341 (a person is guilty of mail fraud when that person, for the
purpose of executing a scheme or artifice to defraud, or
attempting to do so, uses the mails, or “deposits or causes to
be deposited any matter or thing whatever to be sent or
delivered by any private or commercial interstate carrier, or
takes or receives therefrom, any such matter or thing, or
knowingly causes to be delivered by mail or such carrier
3

according to the direction thereon, or at the place at which it
is directed to be delivered by the person to whom it is
addressed, any such matter or thing”).
The critical “interstate” element of the mail fraud statute
is not that there be an interstate mailing caused by the
defendant, but rather that there be any mailing caused by the
defendant that makes use of the Postal Service or any private or
commercial interstate carrier.

See United States v. Gil, 297

F.3d 93, 100 (2d Cir. 2002) (“[A]pplication of the mail fraud
statute to intrastate mailings sent or delivered by private or
commercial interstate carriers, is a permissible exercise of
Congress's power.”).
Viertel argues that Lufthansa carried the mail involved in
this case, and that Lufthansa is not an interstate carrier.
However, this Court has already addressed and rejected similar
arguments.

See United States v. Viertel, 01 Cr. 571, 2005 WL

1053434, at *8 (S.D.N.Y. May 5, 2005) (recounting evidence that
“Burda Media used Apex, a freight company, to ship items to
Germany on a daily basis,” and not Lufthansa) (denying motion
for a new trial), aff’d, 242 F. App’x 779 (2d Cir. 2007); see
also United States v. Viertel, No. 08 Civ. 7512, 2009 WL 22863,
at *9 (S.D.N.Y. Jan. 5, 2009) (“The petitioner's eighth claim is
that ‘The ‘charged’ Courier was not a federal transporter,’ that
is, that Apex Air Freight was not a private or commercial
4

interstate carrier for purposes of the mail fraud statute.

This

claim is barred because the petitioner already raised it in his
motion for a new trial.

That motion was denied and the denial

was affirmed on appeal.

In any event, the claim is without

merit.”) (denying § 2255 petition).
Viertel has provided no new evidence to suggest that the
“interstate carrier” element of § 1341, about which the jury was
properly instructed, was not met in this case.

Viertel asserts

in his current motion that the fraudulent invoices in this case
were shipped to Germany via Newark Airport in New Jersey.

(See,

e.g., Pet.’s Mot. at 2, 16); see also Viertel, 2005 WL 1053434,
at *6 (noting Viertel’s argument that a new trial was warranted
based on “a document that Viertel maintains is a waybill issued
by Lufthansa at Newark International Airport on or around June
28, 1996,” which Viertel claimed was “newly discovered
evidence”).

There was evidence from which the jury in this case

could have found that the interstate carrier element was met,
however, because there was evidence that showed that the
fraudulent invoices at issue were routinely sent from Burda’s
New York City offices to the airport in Newark, New Jersey using
Apex.

(See, e.g., Trial Tr. at 303 (“Q: What is Apex?

A: Apex

is a freight company which came and picked up the bags and
delivered it to the airport.

Q: And the bags included at the

end of the month these invoices, is that right?
5

A: Yes.”); see

also Viertel, 2005 WL 1053434, at *8.

Indeed, the airbill that

Viertel attached to the current motion confirms that Apex
transported items for shipment from New York to Newark Airport
in New Jersey.

Accordingly, a jury could have found that the

invoices were sent to Newark via interstate carrier before they
were sent abroad.

The circumstances are not such that coram

nobis relief is required to achieve justice.
Moreover, Viertel has not offered “sound reasons . . . for
[his] failure to seek appropriate earlier relief.”
F.3d at 90.

Fleming, 146

Viertel made a similar argument in his motion for a

new trial and in his § 2255 petition, and he points to no new
evidence upon which he relies, and no reason why, to the extent
that his current argument differs from arguments that he has
already raised, he was unable to make it at an earlier stage.
Finally, as explained above, Viertel’s argument that there
was no federal jurisdiction under the mail fraud statute is
completely without merit. 1

Accordingly, the application for

relief pursuant to § 1651 is denied.

1

Viertel has also argued that his conviction should be vacated
because of a lack of venue, due to the fact that the fraudulent
invoices were sent to Germany via the Newark Airport, which is
not in the Southern District of New York. This argument fails,
because Burda’s office was in New York City, and the mailings at
issue originated in New York City. The Court has already
addressed Viertel’s arguments related to venue and found them
meritless. See Viertel, 2009 WL 22863, at *10 (citing United
States v. Naranjo, 14 F.3d 145, 146 (2d Cir. 1994)). Nothing in
the current application changes the Court’s previous analysis
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CONCLUSION

The Court has considered all of the arguments raised by the
parties.

To the extent not specifically addressed, the

arguments are either moot or without merit.

Viertel's

application for a writ of error coram nobis is denied.
The Clerk is directed to close Docket No. 282.
SO ORDERED.
Dated:

New York, New York
May 8, 2012
John G. Koeltl
District Judge

with respect to venue.
support § 1651 relief.

Viertel's venue argument does not
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