Rebrook v. United States of America
Filing
132
MEMORANDUM OPINION AND ORDER pursuant to the 103 petition for a writ of error coram nobis, granting the petitioner's 130 Motion to supplement the record; adopting and incorporating the 124 Proposed Findings and Recommendation by Magi strate Judge, except insofar as otherwise stated more fully herein respecting the cause analysis; this action is dismissed and stricken from the docket. Signed by Judge John T. Copenhaver, Jr. on 2/11/2014. (cc: attys; any unrepresented party) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
WILLIAM EDWARD REBROOK, III,
Petitioner,
v.
Civil Action No. 2:10-1009
(Criminal No. 2:93-00151)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending is a petition for a writ of error coram nobis
pursuant to 28 U.S.C. § 1651, filed August 9, 2010, and
petitioner’s motion to supplement the record (“motion to
supplement”), filed February 4, 2014.
The motion to supplement requests that the record be
expanded to include certain documents from the petitioner’s
direct appeal of the Judgment in his criminal case, consisting
of the parties’ opening, response, and reply briefs, and the
petition for rehearing and suggestion for rehearing en banc.
is ORDERED that the motion to supplement be, and hereby is,
granted.
It
I.
This action was previously referred to the Honorable
Mary E. Stanley, United States Magistrate Judge, for submission
to the court of her Proposed Findings and Recommendation
(“PF&R”) for disposition pursuant to 28 U.S.C. § 636. On January
5, 2012, the magistrate judge filed her PF&R recommending that
the petition be denied.
On January 27, 2012, the United States
and the petitioner filed objections.
The magistrate judge has comprehensively recited the
procedural and substantive posture of the case.
To summarize,
on June 17, 1993, the United States filed a two-count indictment
charging petitioner in Count One with wire fraud, in violation
of 18 U.S.C. §§ 1343 and 1346 ("wire fraud charge"), and in
Count Two with securities fraud, in violation of 15 U.S.C. §§
78ff and 78j(b) and 17 U.S.C. § 240.10b-5.
He was convicted on
both counts by a general verdict.1
As noted in the court of appeals' opinion adjudicating
petitioner's direct challenge to his conviction, the wire fraud
1
Petitioner’s conviction and sentence for the Count
Two securities fraud was reversed based upon our court of
appeals’ rejection of the so-called “misappropriation
theory.” See United States v. ReBrook, 58 F.3d 961, 970
(4th Cir. 1995).
2
charge alleged that the scheme to defraud was designed to
deprive "the citizen[ry] of [petitioner's] honest and faithful
services as the attorney for the Lottery Commission ["honest
services theory"], and that he traded on confidential
information ["property fraud theory"]."
United States v.
ReBrook, 58 F.3d 961, 966 (4th Cir. 1995) (emphasis added).
On February 7, 1994, the presiding district judge,
Charles H. Haden, II, entered the Judgment sentencing petitioner
to a twenty-seven month term of imprisonment running
concurrently on each count followed by a two-year term of
supervised release, along with payment of the statutory monetary
assessment.
Petitioner's direct appeal was unsuccessful.
The court has reviewed the matter de novo.
The United
States' objections are first addressed.
The United States asserts that the magistrate judge
erred in finding cause to support petitioner's failure to raise
on direct appeal his vagueness challenge respecting his wire
fraud conviction as to the honest services prong.
In Murray v.
Carrier, 477 U.S. 478 (1986), the Supreme Court observed that
cause could arise from "a showing that the factual or legal
basis for a claim was not reasonably available to counsel
["reasonable availability rule"]. . . ."
3
Id. at 488.
The same
day, in Smith v. Murray, 477 U.S. 527 (1986), the Supreme Court
gave further guidance concerning what does not serve to invoke
the reasonable availability rule:
Here the record unambiguously reveals that
petitioner's counsel objected to the admission of Dr.
Pile's testimony at trial and then consciously elected
not to pursue that claim before the Supreme Court of
Virginia. The basis for that decision was counsel's
perception that the claim had little chance of success
in the Virginia courts. With the benefit of hindsight,
petitioner's counsel in this Court now contends that
this perception proved to be incorrect. Even assuming
that to be the case, however, a State's subsequent
acceptance of an argument deliberately abandoned on
direct appeal is irrelevant to the question whether
the default should be excused on federal habeas.
Indeed, it is the very prospect that a state court
“may decide, upon reflection, that the contention is
valid” that undergirds the established rule that
“perceived futility alone cannot constitute cause,” .
. . ; for “[a]llowing criminal defendants to deprive
the state courts of [the] opportunity” to reconsider
previously rejected constitutional claims is
fundamentally at odds with the principles of comity
that animate Sykes and its progeny.
Smith v. Murray, 477 U.S. 527, 534-35 (1986) (emphasis added)
(citation omitted).
The Supreme Court further observed to wit:
[T]he question is not whether subsequent legal
developments have made counsel's task easier, but
whether at the time of the default the claim was
“available” at all. As petitioner has candidly
conceded, various forms of the claim he now advances
had been percolating in the lower courts for years at
the time of his original appeal. Moreover, in this
very case, an amicus before the Supreme Court of
Virginia specifically argued that admission of Dr.
Pile's testimony violated petitioner's rights under
the Fifth and Sixth Amendments.
Id. at 537 (citation omitted).
4
Our court of appeals has similarly recognized the
limits of the reasonable availability rule.
In United States v.
Sanders, 247 F.3d 139 (4th Cir. 2001), the movant asserted that
the legal basis for his Apprendi claim was not reasonably
available to his lawyer when the movant pled guilty in 1997.
The court of appeals disagreed:
Under the Bousley analysis, Sanders simply cannot show
cause to explain his failure to raise his Apprendi
argument on direct appeal. The Seventh Circuit has
recently addressed this precise issue, holding that a
petitioner procedurally defaulted his Apprendi claim
when he failed to raise it at his trial in 1992.
[United States v. ]Smith[,241 F.3d 546 (7th Cir.
2001)] determined that the petitioner's claims were
not novel because “the foundation for Apprendi was
laid long before 1992. Other defendants had been
making Apprendi-like arguments ever since the
Sentencing Guidelines came into being, and in McMillan
v.. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91
L.Ed.2d 67 (1986), the Court addressed on the merits
an argument along similar lines.”
Smith further rejected the petitioner's futility
argument, which is identical to Sanders' here. The
Smith petitioner argued that he showed cause because,
prior to Apprendi, the federal circuit courts had held
that drug quantity under 21 U.S.C. § 841(b) was a
statutory sentencing factor rather than a substantive
element of the offense. In light of this contrary
precedent, the petitioner claimed that raising his
Apprendi claims on direct appeal would have been
futile. Applying Bousley, Smith rejected this
argument. Instead, the court recognized that
“‘[c]ause’ means some impediment, and [the petitioner]
does not contend that any outside force impeded his
legal defense.”
Id. at 145 (citations omitted).
5
In rejecting Sander's argument and adopting the
Seventh Circuit's approach, the court of appeals stated this:
Adopting petitioner's view of novelty as a cause
for procedural default would invite criminal
defendants to bypass the preferred procedural avenue
of trial and direct appeal in favor of collateral
review. Collateral review would come in turn to serve
as an all-purposive receptacle for claims which in
hindsight appear more promising than they did at the
time of trial. Bousley did not intend every change in
criminal procedure to become the occasion for
reopening a judgment. The germ of Sanders' Apprendi
claim had sprouted at the time of his conviction and
there is no reason why he could not have raised it
then. Although the court may not have been likely to
accept Sanders' argument, Sanders plainly had at his
disposal the essential legal tools with which to
construct his claim. As a result, Sanders has
procedurally defaulted his Apprendi claim.
Id. at 145-46 (emphasis added) (citations omitted).
The aforementioned analyses supports the United
States' position.
Petitioner raised a vagueness challenge to
the honest services theory of the wire fraud charge both preand post-trial in the district court.
to do so on appeal are immaterial.
His reasons for failing
It is enough that, at the
time of filing his appeal, he "had at his disposal the essential
legal tools with which to construct his claim" as in Sanders.
Inasmuch as he made the argument in the district court -- twice
-- he had the necessary "legal tools" at hand.
He failed to use
them on appeal and consequently cannot show cause for his
procedural default.
While the analysis in the PF&R is well-
6
considered and plausible, the United States' objection is well
taken in light of Sanders and Supreme Court precedent.
The court next considers petitioner's objections.
He
first asserts error in the magistrate judge’s conclusion that he
procedurally defaulted on a vagueness challenge to the honest
services theory supporting his wire fraud conviction.
Petitioner contends that the court of appeals' opinion, at
footnote 6, gave him "the benefit of the doubt" and concluded
that he, like Elton E. Bryan, an individual who was charged with
offenses arising out of a somewhat related scheme, and whose
direct appeal was decided months earlier, sufficiently raised a
species of the vagueness argument, namely, that "a valid
conviction under 18 U.S.C. § 1346 . . . requires more than proof
of loss of honest services . . . ."
(Objecs. at 2).
Footnote six explicitly provides, in part, as follows
respecting the scope of petitioner's argument on direct appeal:
ReBrook's argument appears to be more narrow than that
of Bryan, focusing on the interrelated nature of the
securities fraud and wire fraud prosecutions rather
than on whether a violation of the wire fraud statute
requires the violation of some law or regulation other
than the wire fraud statute itself.
Rebrook, 58 F.3d at 967 n.6 (emphasis added).
The court of
appeals additionally observed at footnote seven as follows:
We stress that, from our reading of his brief,
ReBrook's appeal concerning the wire fraud count is
7
narrow in scope. For example, ReBrook does not
challenge 18 U.S.C. § 1346, which defines a “scheme or
artifice to defraud” under the wire fraud statute as
including the deprivation of “another of the
intangible rights of government,” as being
unconstitutionally vague. Furthermore, ReBrook does
not challenge the sufficiency of the evidence to
support his conviction on the wire fraud charge.
Id. at 967 n.7 (emphasis added) (citation omitted).2
From these
two footnotes on which petitioner relies in his objections, it
is apparent that the magistrate judge's analysis of the matter
is correct.
The objection is not meritorious.
2
Nearly two decades removed from the submission of his
opening brief on appeal, petitioner attempts to construe that
filing from long ago to show that he raised the challenge that
the magistrate judge found to have been defaulted. He concedes,
however, that "the arguments asserted in . . . [his opening]
appellate brief may not have been as compartmentalized as one
would like, given the benefit of hindsight . . . ." (Objecs. at
6).
As noted, petitioner seeks to supplement the record with
his opening brief, the United States’ response brief, and the
petitioner’s reply brief filed during the direct appeal. The
opening brief, consisting of the copy furnished by petitioner’s
counsel on February 4, 2014, is not a part of either the
district or appellate court records for reasons unknown. The
response and reply briefs, however, are present in the court of
appeals’ archives. The court has thus supplemented the record
with these three briefs as requested by petitioner in order to
facilitate appellate review in the event that it is sought by
either party.
Assuming the court was authorized, however, to depart
procedurally from the law of the case doctrine and recharacterize the court of appeals’ understanding of arguments
raised by petitioner during his direct appeal, it would have no
occasion to do so from a substantive perspective. After
reviewing the three aforementioned briefs, the undersigned is in
accord with the panel opinion in the Rebrook direct appeal. One
searches the direct appellate briefing in vain for a vagueness
challenge to the honest-service prong.
8
Second, petitioner asserts that he has shown prejudice
which, combined with the magistrate judge's finding of cause,
results in the court having the ability to reach the merits of
his challenge to the honest services prong and grant coram nobis
relief despite the fact that the vagueness challenge was
procedurally defaulted.3
His argument is encapsulated in the
following excerpt from his objections:
In Skilling [v. United States, 130 S. Ct. 2896
(2010)], the United States Supreme Court held that
honest services wire fraud only applied to bribery and
kickback schemes. Accordingly, if Petitioner was
convicted of wire fraud solely on the basis of a
honest services theory, his conviction must be
vacated. This is not in dispute. However, Petitioner’s
conviction on the wire fraud charge in Count I of the
indictment rested on what the United States asserts
were alternative theories of guilt -- a scheme to
defraud the State of his honest services and a scheme
to defraud the State of property. Petitioner
disagrees. He was only tried on an honest services
wire fraud theory, and that is the only theory that
was presented to the jury. Accordingly Petitioner must
be granted coram nobis relief.
(Objecs. at 7).
The magistrate judge's analysis on the point appears
at pages 79-84 of the PF&R.
The discussion found there
respecting the opening statement and closing argument of the
United States, the jury instructions, and the order denying
petitioner's post-trial motion disclose that petitioner was not,
3
As noted earlier, the court has concluded that cause is
not shown. It will nevertheless address the remainder of
petitioner's objections.
9
as he suggests, "tried [only] on an honest services wire fraud
theory . . . ."
(Objecs. at 7).
To the extent any doubt
remains on the point, a further observation is warranted.
Petitioner concedes that Count One of the indictment
included the alternative honest services and property fraud
theories. (Objecs. at 8).
That is significant inasmuch as the
court read to the potential jurors, at the outset of the case,
the entire indictment, including the alternative theories for
the wire fraud alleged in Count One, which are reproduced in the
PF&R at page 79.
(Tr. at 9).
While the court did not read the
indictment anew during its charge to the jury, it explicitly
referenced the indictment as earlier read.
(Tr. at 545).
In
view of this, and the foregoing discussion, the court concludes
that the objection is not meritorious.
It is apparent that the
United States' case included both the honest services and
property fraud theories.
As more fully explained by the
magistrate judge, both theories rested on the same, sufficient
evidentiary basis to support the general verdict as to Count
One.
Essentially this same analysis dooms the substance of
petitioner’s writ request.
Apart from the procedural
infirmities identified supra, the evidentiary predicate
necessary to convict the petitioner beyond a reasonable doubt
10
covered both the honest services and property fraud branches
found in Count One.
As noted by the court of appeals respecting
Count One, “the Government alleged that ReBrook schemed to
defraud the citizens of the State of West Virginia of his honest
and faithful services as the attorney for the Lottery
Commission, and that he traded on confidential information.”
Rebrook, 58 F.3d at 966, 963 (emphasis added) (“It was the
Government's theory at trial that, from a date early in 1992,
ReBrook had knowledge of the Governor's undisclosed plans to
allow a statewide expansion of the video lottery immediately
following the general election.”).
It was only by virtue of trading on the confidential
information entrusted to him that petitioner transgressed the
honest services and property components of section 1343.
In
light of Skilling, it was error to submit the honest-services
prong of Count One to the jury.
At the same time, the jury also
then had under consideration a separate, and entirely valid,
property fraud prong also pertaining to Count One respecting the
compromised confidential information relating to West Virginia’s
plans to expand the lottery.
No reasonable jury could have
acquitted the petitioner of property fraud for misusing the
confidential information entrusted to him but convicted him of
honest services fraud for that very scheme.
11
Put another way,
the two section 1343 branches sprang from a common legal and
evidentiary vine.
Beyond a reasonable doubt, the Skilling error
was harmless.
Coram nobis is reserved for those extraordinary cases
warranting equitable intervention to achieve justice.
of the most fundamental sort is absent from this case.
An error
The
petitioner cannot demonstrate that the ends of justice will be
served by granting the extraordinary relief requested.
The
court consequently declines to upset the longstanding conviction
under Count One.
Having considered the petitioner's remaining
objections to the PF&R, the court concludes that they are not
meritorious.
1.
It is, accordingly, ORDERED as follows:
That the magistrate judge's PF&R be, and it hereby is,
adopted and incorporated herein except insofar as
otherwise stated above respecting the cause analysis;
2.
That this action be, and it hereby is, dismissed and
stricken from the docket.
12
The Clerk is directed to transmit a copy of this
written opinion and order to counsel of record and any
unrepresented parties.
ENTER:
February 11, 2014
John T. Copenhaver, Jr.
United States District Judge
13
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