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UNITED STATES v. FOONT

October 19, 1995

UNITED STATES OF AMERICA, against PAUL J. FOONT, Defendant-Petitioner

CHARLES S. HAIGHT, JR., UNITED STATES DISTRICT JUDGE


The opinion of the court was delivered by: HAIGHT

HAIGHT, Senior District Judge:

 Paul J. Foont petitions for a writ of error coram nobis to withdraw his plea of guilty to a charge of conspiracy in violation of 18 U.S.C. § 371. The indictment in question, charging Foont and his co-defendant, Jeffrey L. Feldman, bore docket number 89 Cr. 765. In briefing the present petition, Foont and the government continue to use the caption and docket number of that criminal action. A coram nobis petition is a separate action, usually pleaded in the name of the petitioner against the prosecuting authority as respondent. See, e.g., Nicks v. United States, 955 F.2d 161 (2d Cir. 1992). In the opinion that follows I will refer to Foont as the "petitioner."

 The government opposes Foont's petition and asks that it be dismissed.

 PROCEDURAL HISTORY

 The criminal indictment charged Feldman and Foont with various offenses arising out of certain financial transactions entered into by the so-called "Cralin Partnerships." The Cralin Partnerships were a series of New York limited partnerships that were promoted as dealers or broker-dealers in various securities, commodities, and options. The government charged in the indictment that Feldman and Foont devised a plan to create approximately $ 140,000,000 in false tax deductions for the 1981 tax year, such deductions to be passed on to the limited partners in the Cralin Partnerships. The thrust of the indictment was that the defendants created and concealed a fraudulent income deferral device aimed at evading taxes for the 1981 tax year.

 Count One of the indictment charged Feldman and Foont with conspiracy to accomplish this illicit purpose, in violation of 18 U.S.C. § 371. There followed a number of substantive counts arising out of the revenue laws, and involving conduct for the period 1981 through 1985.

 Shortly before the commencement of trial, both defendants decided to plead guilty. The government accepted pleas of guilty from Feldman and Foont to Count One in full satisfaction of the indictment. This Court imposed custodial sentences upon both Feldman and Foont.

 Following sentencing, Feldman and Foont pursued quite different procedural paths. Foont sought no post-sentence relief. He was sentenced to a period of imprisonment of one year and one day. He did not appeal his conviction, surrendered to the Bureau of Prisons and completed his term of imprisonment in 1991. Foont's present petition for a writ of error coram nobis represents his first application for a judicial remedy following this Court's acceptance of his plea of guilty and imposition of sentence.

 In stark contrast, Feldman, who was sentenced on July 11, 1990 to two years' imprisonment, did not surrender to the Bureau of Prisons to commence his term. Instead, he brought a petition for habeas corpus under 28 U.S.C. § 2255. Feldman sought to withdraw his plea of guilty and stand trial on the charges in the indictment against him. The thrust of Feldman's habeas corpus petition was that he had not been properly advised, by either his attorney or this Court, of the mens rea requirement of the crime with which he was charged, so that his allocution at the time of his guilty plea was fatally flawed.

 I denied Feldman's petition in an opinion and order dated March 6, 1991. The Second Circuit affirmed that denial on the ground that Feldman had not shown cause for the failure to raise his claim upon direct appeal and consequently could not do so on a § 2255 motion. Thereafter Feldman moved this Court for leave to file a late notice of appeal and related relief. I denied that motion in an opinion dated November 17, 1992. The Second Circuit affirmed that denial as well.

 Feldman then moved for a reduction of sentence under Fed.R.Crim.P. 35(b), as that rule existed prior to its amendment in 1987 as part of the Sentencing Reform Act of 1984. In an opinion dated July 29, 1993, I granted Feldman's motion and reduced his sentence from one of imprisonment to three years' probation and community service.

 As appears from its papers in opposition to Foont's present petition, that reduction of sentence irritated the government. But it did not satisfy Feldman, who moved again under 28 U.S.C. § 2255 to withdraw his plea of guilty and stand trial. I denied that petition in an opinion dated November 29, 1993.

 In this opinion I will refer again to that attorney and those accountants. It is necessary to note, however, that Feldman's Rule 35(b) motion and Foont's coram nobis petition present entirely different procedural contexts. Under former Rule 35(b), the sentencing judge had broad discretion in deciding what factors bore upon whether a sentence should be reduced. In contrast, the law imposes strict limitations upon what can be considered, and for what purposes, on a coram nobis petition. In the discussion that follows, I consider the nature of the writ, its prerequisites and limitations, all as declared by higher authority which is binding upon this Court.

 DISCUSSION

 In United States v. Morgan, 346 U.S. 502, 511, 98 L. Ed. 248, 74 S. Ct. 247 (1954), the Supreme Court said of the writ of error coram nobis: "Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice." The more recently articulated rule in the Second Circuit is that "the writ will issue only where extraordinary circumstances are present." Nicks v. United States, 955 F.2d at 167.

 Nicks involved a petition for a writ of error coram nobis to vacate a 1974 conviction and 1975 sentencing in this Court on a charge of armed bank robbery. In his petition Nicks contended that he was mentally incompetent at the time of plea and sentence or, at the very least, that the district court should have held a constitutionally required competency hearing. The Second Circuit's opinion in Nicks identified the three showings the petitioner had to make to obtain the writ. First, Nicks had to show that he "was entitled to a competency hearing at the time of his plea and sentencing," since if he was so entitled (no hearing having been held by the district court), "a fundamental error has occurred and the writ may properly issue." Id.

 Second, Nicks had to show that he continued to suffer "legal consequences from his conviction that may be remedied by granting of the writ." Id. As authority for that proposition, the Second Circuit referred to the Supreme Court's observation in Morgan, 346 U.S. at 512-13, that "although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be affected." (footnote omitted). The Nicks court also relied upon decisions in other circuits which held that coram nobis relief was not available unless the challenged conviction carried continuing penalties. Nicks, 955 F.2d at 167 (citing United States v. Bush, 888 F.2d 1145, 1149 (7th Cir. 1989), and United States v. Osser, 864 F.2d 1056, 1059 (3rd Cir. 1988)). That requisite showing presented no problem for Nicks, since the effect of the 1974 federal conviction he sought to challenge by coram nobis factored into an Alabama court's sentence of death for a subsequently committed state crime.

 Third, the Second Circuit in Nicks interpreted United States v. Morgan, 346 U.S. at 512, as instructing that "coram nobis relief should issue only when 'sound reasons exist [] for failure to seek appropriate earlier relief.'" That raised the question whether Nicks had delayed too long. "His coram nobis petition was filed in 1989, 15 years after his federal armed bank robbery conviction in New York and five years after his Alabama murder conviction." 955 ...


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