Viertel v. USA
Filing
19
MEMORANDUM OPINION AND ORDER: The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed above, the arguments are either moot or without merit. The petitioners motions are denied. The Clerk is directed to close Docket No. 295. The Clerk is also directed to enter judgment, to close case number 08 Civ. 7512, and to close all pending motions. (Signed by Judge John G. Koeltl on 10/4/2013) (djc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
───────────────────────────────────────
UNITED STATES OF AMERICA,
08 Civ. 7512 (JGK)
01 Cr. 0571 (JGK)
- against MEMORANDUM OPINION
AND ORDER
CHRISTIAN T. VIERTEL,
Defendant.
───────────────────────────────────────
JOHN G. KOELTL, District Judge:
Following a jury trial, the petitioner, Christian
Viertel, was found guilty on each count of a three-count
superseding indictment charging conspiracy to commit mail and
wire fraud, as well as substantive counts of mail fraud and
wire fraud.
The petitioner has filed an “Amended and Adjunctim AWA
(18: § 1651),” seeking a writ of error coram nobis on the
grounds of lack of federal jurisdiction over the mail fraud
charge of which he was convicted, factual innocence, and other
claims.
The Government opposes this request on the basis
that, as this Court previously found, there was federal
jurisdiction over the mail fraud charge because the Government
satisfied the interstate element of the mail fraud statute.
1
The Government also contends that any other arguments were
forfeited because the petitioner did not raise them previously
despite the opportunity to do so.
The petitioner has also
filed a motion for three orders to show cause asking that the
Court require the Government to provide responses to various
requests for information.
For the following reasons the
petitioner’s motion and orders to show cause are denied.
I.
A.
In a superseding indictment, the petitioner was charged
with conspiracy to commit mail and wire fraud in connection
with the submission of false invoices to Burda Media Inc.
(“Burda”), and with substantive counts of mail and wire fraud.1
At the trial, which began on September 12, 2002, the
1
The history of this case is recounted in numerous prior
opinions denying applications for post-conviction relief.
See, e.g., United States v. Viertel, Nos. 01 Cr. 571 & 08 Civ.
7512, 2012 WL 1604712 (S.D.N.Y. May 8, 2012), aff’d, 505 F.
App’x 40 (2d Cir. Dec. 11, 2012) (summary order); United
States v. Viertel, No. 01 Cr. 571, 2005 WL 1053434 (S.D.N.Y.
May 5, 2005), aff’d, 242 F. App’x 779 (2d Cir. Sept. 26, 2007)
(summary order). Familiarity with the facts and procedural
history of the case is assumed; details are recounted to the
extent necessary to decide the present motions.
2
Government produced substantial evidence that Viertel’s
companies had submitted false invoices to Burda in New York,
that those invoices were sent to Germany using Apex Air
Freight (“Apex”), and that funds were wired to New York.
The
jury 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.
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 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”).
3
The jury found the petitioner guilty of conspiracy to
commit mail and wire fraud, as well as substantive counts of
mail fraud and wire fraud.
The Court sentenced the petitioner
principally to 21 months imprisonment on each count to run
concurrently, to be followed by a three-year term of
supervised release.
This Court denied a motion by the petitioner for a new
trial pursuant to Federal Rule of Criminal Procedure 33 based
on allegations that the Government had withheld material
exculpatory evidence in violation of Brady v. Maryland, 373
U.S. 83 (1963).
See United States v. Viertel, 01 Cr. 571,
2003 WL 367867 (S.D.N.Y. Feb. 19, 2003).
The petitioner then appealed his conviction, claiming,
among other things, that there was insufficient evidence to
support a conviction on the conspiracy charge and the
substantive mail and wire fraud counts, and the Court of
Appeals affirmed the conviction.
United States v. Viertel, 98
F. App’x 68, 69-70 (2d Cir. May 28 2004) (summary order).
In
his appeal, the petitioner did not raise the argument that the
Government had not satisfied the interstate element of mail
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fraud.
On June 21, 2004, the Court of Appeals denied the
petitioner’s request for rehearing en banc.
B.
The petitioner then moved again for a new trial, arguing
that newly discovered evidence eliminated the jurisdictional
predicate for mail fraud by demonstrating that the key invoice
was carried rather than mailed to Germany.
1053434, at *6.
Viertel, 2005 WL
This Court denied the petitioner’s motion for
a new trial, finding, among other things, that there had been
no showing that the newly discovered documents could not have
been discovered before or during the trial in the exercise of
due diligence.
Id. at *7.
The Court also pointed to evidence
supporting the conviction, including testimony that Burda used
Apex to ship items to Germany on a daily basis, and that the
key invoice was in fact sent.
Id. at *8.
The petitioner also
raised insufficiency of the evidence as ground for a new
trial.
Id. at *9.
However, this Court found the objection to
the sufficiency of the evidence untimely and unmeritorious
given that there was ample evidence to support the
5
petitioner’s conviction, and that the Court of Appeals had
affirmed the conviction.
Id. at *10.
Following the decision of the Court of Appeals in United
States v. Crosby, 397 F.3d 103 (2d Cir. 2005), abrogated in
part by United States v. Fagans, 406 F.3d 138 (2d Cir. 2005),
the petitioner’s case was remanded for further sentencing
proceedings.
On remand, this Court determined that the
sentence was reasonable in view of the nature of the offense
and the history and characteristics of the petitioner.
United
States v. Viertel, 01 Cr. 571, 2005 WL 1844774, at *1
(S.D.N.Y. Aug. 3, 2005).
The Court of Appeals affirmed the
sentence in light of Crosby, and also affirmed the denial of
the petitioner’s motion for a new trial.
United States v.
Viertel, 242 F. App’x 779, 780 (2d Cir. Sept. 26, 2007)
(summary order).
C.
The petitioner then filed another motion for new trial
on the basis that the Government had allegedly withheld
favorable evidence in violation of Brady.
This Court denied
the motion because the petitioner had failed to substantiate
his allegation that the Government had withheld favorable
6
evidence.
United States v. Viertel, No. 01 Cr. 571, 2008 WL
1944851, at *1 (S.D.N.Y. Apr. 30, 2008), aff’d, 505 F. App’x
40, 41 (2d Cir. Dec. 11, 2012) (summary order).
The petitioner then filed a petition for a writ of error
coram nobis, asserting for the first time that the
jurisdictional interstate element of mail fraud had not been
established.
After reviewing the elements of the mail fraud
statute and the evidence presented at trial, this Court
determined that the jurisdictional interstate element had been
satisfied and that the petitioner had not made the necessary
showing of extraordinary circumstances warranting coram nobis
relief.
Viertel, 2012 WL 1604712, at *2-3.
The Court pointed
out that it had previously rejected similar arguments.
It
noted that the jury was properly instructed as to the elements
of a mail fraud violation and that there was evidence from
which the jury could conclude 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.
Accordingly, the Court denied the motion.
Id. at *2.
Id. at *3.
The
Court of Appeals affirmed the denials of the motion for a new
trial, the petition for a writ of error coram nobis, and the
7
denial of a motion for reconsideration of the order denying
the writ of error coram nobis.
Viertel, 505 F. App’x at 41.
The petitioner also moved to vacate or set aside his
sentence pursuant to 28 U.S.C. § 2255, raising about twentytwo grounds for relief, which were all rejected.
United
States v. Viertel, No. 08 Civ. 7512, 2009 WL 22863, at *6-12
(S.D.N.Y. Jan. 5, 2009).
The Court declined to issue a
certificate of appealability because the petitioner had failed
to make the requisite showing of a denial of a constitutional
right.
Id. at *12.
The petitioner had also styled the
petition as an application for a writ of error coram nobis,
and the Court rejected this application, finding that the
petitioner had failed to demonstrate extraordinary
circumstances warranting relief.
Id. at *6, 12.
The petitioner subsequently filed a “Vacatur of Judgment
of Conviction grounded upon ab ovo deficit of interstate
[§ 1341] jurisdiction over international deliverances [via air
cargo export], divesting Federal Courts of adjudicatory
powers.”
The Court determined that it was a successive
petition for habeas corpus pursuant to 28 U.S.C. § 2255 and
transferred the motion to the Court of Appeals pursuant to 28
8
U.S.C. § 1631.
See United States v. Viertel, Nos. 01 Cr. 571
& 08 Civ. 7512, 2012 WL 71011, at *2 (S.D.N.Y. Jan. 9, 2012).
The Court of Appeals held that the petitioner was
jurisdictionally precluded from bringing a motion pursuant to
Section 2255 because he had served his sentence and had been
released from custody.
The Court of Appeals construed the
filing as a petition for a writ of error coram nobis, and
remanded the case to this Court for consideration of the
availability of relief on a writ of error coram nobis pursuant
to the All Writs Act, 28 U.S.C. § 1651.
(Mandate of the
United States Court of Appeals for the Second Circuit, No. 08
Civ. 7512, ECF No. 16, at 1-2.)
The Court of Appeals noted
that it had recently affirmed the denial of a separate coram
nobis petition raising similar or identical claims, but that
it was for this Court rather than the Court of Appeals to
decide the merits of the coram nobis petition.
(Mandate of
the United States Court of Appeals for the Second Circuit, No.
08 Civ. 7512, ECF No. 16, at 2 (citing Viertel, 505 F. App’x
40).)
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II.
After the case was remanded, the petitioner filed his
“Amended and Adjunctim AWA (18: § 1651),” and his orders to
show cause seeking discovery from the Government.
Pursuant to
the mandate of the Court of Appeals, this Court construes the
petitioner’s filing as a petition for a writ of error coram
nobis.
“[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).
“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.”
Id. at 89–90; see,
e.g., Porcelli v. United States, 404 F.3d 157, 159 (2d Cir.
2005).
“[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 [the] conviction
10
that may be remedied by granting of the writ.”
Fleming, 146
F.3d at 90 (quoting Foont v. United States, 93 F.3d 76, 79 (2d
Cir. 1996)) (internal quotation marks omitted).
III.
A.
In his petition for a writ of error coram nobis, the
petitioner argues that his conviction was invalid because the
Government did not satisfy the jurisdictional interstate
element of the mail fraud statute.
This Court previously
considered and rejected this argument in Viertel, 2012 WL
1604712, and the Court of Appeals affirmed that decision.
Viertel, 505 F. App’x 40.
There is nothing in the current
submissions that alters the conclusion that the Government
carried its burden at trial to demonstrate the interstate
element of the mail fraud statute.
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.
11
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 . . . .”); see also Viertel, 2012
WL 1604712, at *2.
The jury in this case was properly
instructed that the Government must prove 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 commercial interstate carrier.”
(Trial Tr. at
1992.)
The petitioner argues that Lufthansa carried the mail
involved in this case, and that Lufthansa is not an interstate
carrier.
However, at trial the Government introduced evidence
that Burda used Apex, a freight company that operated
interstate, to ship items to Germany on a daily basis.
The petitioner asserts that the fraudulent invoices in
this case were shipped to Germany via Newark Airport in New
Jersey.
But the invoices had to be sent from Burda’s offices
in New York to the airport in New Jersey.
The Government
introduced evidence at trial from which the jury could
12
reasonably have found that the interstate carrier element was
met—namely, 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, which
then sent the fraudulent invoices to Germany. (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? A: Yes.”); Viertel, 2012 WL
1604712, at *2; Viertel, 2005 WL 1053434, at *8.)
Accordingly, a jury could have found that the invoices were
sent to Newark via interstate carrier before they were sent
abroad.
The evidence was sufficient to satisfy the interstate
element of mail fraud, and, therefore, this Court had
jurisdiction over the charge of conspiracy to violate the mail
fraud statute and the charge of violating the mail fraud
statute.
Moreover, the petitioner has failed to provide sound
reasons showing that coram nobis is warranted.
The petitioner
has made substantially the same argument in prior papers.
It
has been rejected, and the Court of Appeals has affirmed the
13
rejection.
See Viertel, 505 F. App’x at 41.
The
circumstances are not such that coram nobis relief is required
to achieve justice.
B.
In supplemental filings, the petitioner also argues that
his conviction was invalid pursuant to Morrison v. Nat’l
Australia Bank, 130 S. Ct. 2869 (2010) and Kiobel v. Royal
Dutch Petroleum Co., 133 S. Ct. 1659 (2013).
Morrison held
that “Section 10(b) [of the Securities Exchange Act] reaches
the use of a manipulative or deceptive device or contrivance
only in connection with the purchase or sale of a security
listed on an American stock exchange, and the purchase or sale
of any other security in the United States.”
2888.
130 S. Ct. at
Kiobel held that when all relevant conduct takes place
outside the United States, a defendant cannot be sued under
the Alien Tort Statute.
133 S. Ct. at 1668-69.
While both
Morrison and Kiobel were civil cases, the Court of Appeals has
held that the standard articulated in Morrison also applies in
criminal cases.
See United States v. Vilar, Nos. 10-521-Cr,
14
10-580-Cr, & 10-4639-Cr, 2013 WL 4608948, at *5 (2d Cir. Aug.
30, 2013).
The petitioner was not convicted of a violation of
Section 10(b) of the Securities Exchange Act or any offense
relating to the Alien Tort Statute.
But the petitioner claims
that his conviction for a violation of the mail fraud statute
and conspiracy to violate the mail fraud statute runs afoul of
the general “longstanding principle of American law that
legislation of Congress, unless a contrary intent appears, is
meant to apply only within the territorial jurisdiction of the
United States.”
Morrison, 130 S. Ct. at 2873 (citation and
internal quotation marks omitted); see also Vilar, 2013 WL
4608948, at *5-9 (applying the presumption against
extraterritoriality to a criminal violation of Section 10(b)).
The petitioner’s argument is without merit.
There was no
extraterritorial application of the mail fraud statute in this
case.
The mail fraud statute specifically requires the
depositing of matter with the Postal Service . . . [or] any
private or commercial interstate carrier . . . .”
§ 1341.
18 U.S.C.
The mailings at issue in this case occurred when the
false invoices were committed to Apex in New York City for
15
delivery ultimately in Germany.
(Indictment, No. 08 Civ.
7512, ECF No. 39, at ¶¶ 2, 6, 8, 10, 15.)
The invoices were
carried from New York to New Jersey, where they were then
shipped to Germany.
Burda was defrauded in New York by acts
that occurred in New York.
This is not a case involving
extraterritorial application of a criminal statute.
Moreover, the petitioner raised this argument in
connection with his appeal from the denials of his motion for
new trial, his petition for a writ of error coram nobis, and
his motion for reconsideration.
(See Appellant Br., Viertel
v. United States, No. 12-2560, ECF No. 24, at 8-9, 17, 19.)
The Court of Appeals affirmed the decisions below without
specifically addressing the argument that his conviction is
invalid under Morrison.
There is no basis for reconsidering
an argument that has already failed to persuade the Court of
Appeals.
C.
The petitioner also makes other allegations, including
factual innocence.
However, the petitioner has not offered
any evidence to substantiate those allegations.
A jury found
the petitioner guilty of the charges alleged in the
16
indictment, and the Court of Appeals affirmed the conviction.
Numerous subsequent applications have been denied and the
denials have been affirmed on appeal.
There is no new
evidence suggesting that the jury’s conclusions or the
decision of the Court of Appeals affirming the conviction were
in any way erroneous.
Moreover, the petitioner has failed to
explain why these other issues could not have been raised in
his numerous prior submissions to this Court.
Accordingly,
the petitioner has failed to demonstrate that he is entitled
to any relief, and the request for a writ of error coram nobis
is denied.
V.
The petitioner has filed three orders to show cause
seeking information from the Government with respect to
various details about Apex.
However, the petitioner has
failed to show good cause to obtain these documents and has
failed to show any basis for relief.
See Drake v. Portuondo,
321 F.3d 338, 346 (2d Cir. 2003) (“Although a habeas
petitioner, unlike the usual civil litigant in federal court
is not entitled to discovery as a matter of ordinary course,
17
discovery may be granted upon a showing of good cause.”
(quoting Bracy v. Gramley, 520 U.S. 899, 904 (1997)) (internal
quotation marks omitted); see also Garafola v. United States,
909 F. Supp. 2d 313, 335 (S.D.N.Y. 2012) (denying a habeas
petitioner’s motion for discovery because “[t]he petitioner
s[ought] broad discovery without making specific allegations
that the requested evidence will show reason to believe that
he is entitled to relief”); Charles v. Artuz, 21 F. Supp. 2d
168, 169 (E.D.N.Y. 1998) (denying a habeas petitioner’s motion
for discovery for failure to show good cause); Green v. Artuz,
990 F. Supp. 267, 271 (S.D.N.Y. 1998) (denying a habeas
petitioner’s motion for discovery for failure to produce
“specific evidence that the requested material” would support
his claim for relief).
Therefore, the three orders to show
cause are denied.
CONCLUSION
The Court has considered all of the arguments raised by
the parties.
To the extent not specifically addressed above,
the arguments are either moot or without merit.
petitioner’s motions are denied.
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The
The Clerk is directed to
close Docket No. 295.
The Clerk is also directed to enter
judgment, to close case number 08 Civ. 7512, and to close all
pending motions.
SO ORDERED.
Dated:
New York, New York
October 4, 2013
___________/s/____________
John G. Koeltl
United States District Judge
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