Opinion
CR. No. 87-301-JLT.
October 21, 1999.
MEMORANDUM
This case arises under the All Writs Act, 28 U.S.C. § 1651. On December 7, 1987, Petitioner Thomas Theodore pled guilty to one count of mail fraud under 18 U.S.C. § 1341, for which he was sentenced to two years probation and 500 hours of community service. Petitioner now seeks to withdraw his guilty plea by way of a motion properly construed as a writ of error coram nobis. For the reasons discussed below, Petitioner's Motion to Withdraw a Plea of Guilty is denied.
I. Background
According to the Information, Petitioner submitted fraudulent and false credentials to the Massachusetts Board of Registration in Medicine in an application for a license to practice medicine. Petitioner's false representations included claims that he graduated from Boston University with a biology or biochemistry degree; that he completed two years of undergraduate premedical training; that he completed four years of medical education at CETEC Medical School in the Dominican Republic, receiving his M.D. in 1980; and that he attended Medical School at the University of Puerto Rico and at Universidad Cenral del Este in San Pedro de Marcoris, Dominican Republic. Finally, Petitioner submitted false documents, including a letter of reference from the Dean of CETEC Medical School and a CETEC diploma. As a result of these representations, Petitioner obtained a license to practice medicine and was employed by numerous hospitals in Massachusetts, including Carney Hospital in Boston, Sancta Maria Hospital in Cambridge, and Whidden Memorial Hospital in Everett.
II. Discussion
Petitioner seeks to withdraw his guilty plea, arguing that the Information to which he pled fails to make out a criminal offense. The basis for Petitioner's argument is the Supreme Court's decision in McNally v. United States, 483 U.S. 350 (1987). In McNally the Court held that a mail fraud conviction under 18 U.S.C. § 1341 was invalid where the charged offense involved a scheme to defraud citizens of their intangible right to honest and impartial government. Id. at 356. Petitioner alleges that his guilty plea is invalid under McNally because he fraudulently secured a license to practice medicine, which is an intangible right rather than a protected property interest.
Petitioner's Motion to Withdraw A Plea of Guilty is properly construed as a writ of error coram nobis. "The writ of error coram nobis is used to vacate a federal sentence or conviction when a § 2255 motion is unavailable — generally, when the petitioner has served his sentence completely and thus is no longer in custody' as is required for § 2255 relief." Blanton v. United States, 94 F.3d 227, 231 (6th Cir. 1996). Here, Petitioner seeks to withdraw his guilty plea twelve years after having completed his sentence.
According to First Circuit jurisprudence, the writ of error coram nobis is an "unusual legal animal that courts will use to set aside a criminal judgment of conviction only under circumstances compelling such action to achieve justice.'" Hager v. United States, 993 F.2d 4, 5 (1st Cir. 1993) (Breyer, C.J.) (citing United States v. Morgan, 346 U.S. 502, 511 (1954)). In Hager, the First Circuit adopted a three part test for determining whether to grant a writ of coram nobis. A petitioner must: (1) provide an explanation of why they did not seek relief from judgment earlier; (2) show "that the petitioner continues to suffer serious collateral consequences from the judgment"; and (3) "demonstrate that an error of the most fundamental character' relevant to the plea decision occurred." Id. (citations omitted). Because Petitioner fails to satisfy any of the requirements imposed by Hager, the writ of error coram nobis is denied. First, Petitioner failed to challenge his guilty plea in a timely fashion. Under the requirements discussed in Hager, a party seeking coram nobis relief must explain why relief was not sought earlier. See Hager, 993 F.2d at 5. Without imposing this requirement, "there would otherwise be essentially no time limits for bringing coram nobis claims." Blanton v. United States, 94 F.3d 227, 231 (6th Cir. 1996) (applying the doctrine of laches). In this case, Petitioner entered his guilty plea twelve years ago.
Petitioner seems to suggest that this delay was justified because he was awaiting the final disposition of United States v. Allard, 926 F.2d 1237 (1st Cir. 1991) ("Allard II"), a case substantially identical to his own that was twice remanded by the First Circuit for further determinations by the district court. Presumably Petitioner was awaiting a favorable resolution of Allard II in the hopes that it would assist him in challenging his own guilty plea.
Petitioner also complains that the Government did not inform him, or the court, of Allard's McNally based appeal prior to Petitioner's plea of guilty (the appeal was pending at the time Petitioner entered his plea). See Defendant's Motion to Withdraw a Plea of Guilty at 5. Petitioner does not express why the Government had any duty to do so where the appeal was still undecided and thus did not provide Petitioner with any cognizable defense.
Whether a delay for this purpose meets the second requirement under Hager need not be resolved, however, because in this case the potential resolution of Allard II was irrelevant to the claim Petitioner now makes. When the First Circuit first addressed Allard's claims, it declined to address the issue determinative here — whether a medical license is property under McNally. See United States v. Allard, 864 F.2d 248, 250 (1st Cir. 1989) ("Allard I"). Those proceedings subsequent to the decision in Allard I did not address issues raised by either party here, nor did they pose the potential to do so. Thus, even accepting that Petitioner was justified in awaiting the resolution of a potentially favorable legal precedent, that justification ended when the First Circuit decided Allard I in 1989. The subsequent ten year delay prejudices Petitioner's ability to advance a claim for coram nobis relief. Compare United States v. Bucuvalas, 970 F.2d 937, 941 (1st Cir. 1992) (three year delay not unduly long).
In Allard I the court found it unnecessary to decide whether a medical license was property under § 1341 because it determined that the mail fraud charges were independently sustainable on the ground that the Information included fraudulent actions towards the hospitals that had employed the defendant. See id., 864 F.2d at 250-51. Subsequent proceedings focused on this issue, rather than whether a medical license was property. See Allard II, 926 F.2d 1237.
Second, even if Petitioner's delay in seeking coram nobis relief were excused, Petitioner has also failed to meet the second requirement of Hager by not alleging that he "continues to suffer significant collateral consequences from the judgement." Hager, 993 F.2d at 5. Petitioner did not assert any collateral consequences, in either his filings or in the October 15, 1999 hearing, beyond his felony status. If the collateral consequences requirement of Hager is to have any meaning at all, it must require more than that the petitioner has been adjudged guilty of a crime, for all parties seeking coram nobis relief have criminal convictions. Without alleging more, Petitioner cannot succeed in his request for coram nobis relief.
Finally, assuming that Petitioner has met the first two requirements for coram nobis relief, his motion must fail because he has not shown that the challenged proceeding was tainted by an "error of the most fundamental character.'" Hager, 993 F.2d at 5 (quoting Morgan 346 U.S. at 512-13). This third requirement is essentially an inquiry into the merits of the claim. In this case, Petitioner alleges that a fundamental error has occurred because he pled guilty to an Information that did not make out the elements of mail fraud. The Government convincingly argues, however, that the Court's decision in McNally does not invalidate the mail fraud charges against Petitioner. The McNally decision was important because it narrowed the scope of federal mail fraud statutes by limiting use of "the intangible rights' theory as a basis for mail fraud prosecutions." Bucuvalas, 970 F.2d at 941. In McNally, the Court reversed the conviction of government officials charged with mail fraud for depriving their constituents of the intangible right to honest government. See McNally, 483 U.S. at 356. What the Court left unresolved, however, was whether their analysis extended beyond the intangible right to self government to included intangible property rights.
Some clarification of the Court's intentions in McNally can be drawn from its subsequent decision in Carpenter v. United States, 484 U.S. 19 (1987). There the Court upheld the mail fraud conviction of a reporter for the Wall Street Journal whose fraudulent activities consisted of disclosing information in violation of his fiduciary duty to the newspaper. The Court held that the newspaper's right to control confidential business information was a protected property interest, stating that "McNally did not limit the scope of § 1341 to tangible as distinguished from intangible property rights." Id. at 25. Carpenter thus limits McNally to the proposition that the right to honest and fair government is not a property right, tangible or intangible.
Following McNally and Carpenter, confusion remains over what constitutes a property right under § 1341, particularly as applied to licenses and permits issued by government agencies. See e.g., Bucuvalas 970 F.2d at 944 (noting conflict among circuits in determining whether licenses issued by the government are property); United States v. Martinez, 905 F.2d 709, 714 (3d Cir. 1990) (noting a similar divergence among district courts). While the First Circuit has recognized the range of treatment that courts have applied to licenses, it has chosen to read § 1341 broadly. See Bucuvalas, 970 F.2d at 944. In Bucuvalas the court concluded that liquor licenses are property within the meaning of § 1341, noting "the Court's expansive interpretation of the term property' in Carpenter, and its consistent resort to state common law and statutory law defining property." Id. at 945.
The analysis in Bucuvalas is applicable to Petitioner's case. A property interest includes not only physical property, but also "the rights to possess, to use, to exclude, to profit and to dispose." Id. As with Boston's right to control the issuance of liquor licenses, the Commonwealth had the authority to issue and revoke licenses to practice medicine. By causing the fraudulent issuance of a medical license, Petitioner deprived the Commonwealth of this authority and control, and thus of a property right.
Petitioner argues that the medical license has no intrinsic value in the possession of the state, and thus that an unissued license cannot be property under § 1341. This argument is undermined by the Supreme Court's ruling in Carpenter. There, the Court held that it was immaterial that the newspaper suffered no monetary loss from the disclosure of confidential business information because they were deprived of their right to exclusive control of the information. See Carpenter, 484 U.S. at 26-27. As the Government points out, the Third Circuit drew directly upon the Court's reasoning in Carpenter to conclude that medical licenses are property within the meaning of § 1341. See United States v. Martinez, 905 F.2d 709, 714 (3d Cir. 1990). The court noted there that "what the Commonwealth [of Pennsylvania] (and derivatively its people) lost was the right to keep its medical licenses to itself and to bestow them on persons who had fairly earned them. The[se] deprivations, although different in character [from those in Carpenter], are in each instance of something of value.'" Martinez, 905 F.2d at 714-15 (citing Carpenter, 484 U.S. at 27 (quoting McNally 483 U.S. at 358)). This court finds the Third Circuit's reasoning highly persuasive, as well as consistent with First Circuit authority, and therefore finds that McNally does not render Petitioner's guilty plea invalid.
Under this reading of McNally, Petitioner cannot demonstrate that the Information to which he pled guilty contained an error of the most fundamental character.
III. Conclusion
Because Petitioner is unable to meet the prerequisites for coram nobis relief, the Motion to Withdraw a Plea of Guilty is DENIED.
AN ORDER SHALL ISSUE.