The opinion of the court was delivered by: CURTIN
On March 29, 1989, the defendant, Jack D. Liffiton, was sentenced in the case of United States v. Castiglia, 85-CR-93, to concurrent one-year sentences on Count I (conspiracy to commit offenses against the United States, 18 U.S.C. § 371), and Count II (aiding an abetting misapplication by a bank employee, 18 U.S.C. §§ 2 and 656), and to an additional consecutive one-year sentence on Count IV (perjury before a grand jury, 18 U.S.C. § 1623).
On May 1, 1989, Liffiton was sentenced in the case of United States v. Liffiton, 85-CR-159, to concurrent one-year sentences on two counts of conviction, Count I (conspiracy to impede the function of the IRS, 18 U.S.C. § 371) and Count II (perjury before a grand jury, 18 U.S.C. § 1623). This one-year total sentence was consecutive to the two-year sentence imposed in the other conviction, resulting in a three-year total sentence. Liffiton was released from federal custody on or about June 7, 1993, thereby completing his sentence.
Both convictions were affirmed on appeal. United States v. Castiglia, 894 F.2d 533 (2d Cir. 1990), cert. denied, Liffiton v. United States, 498 U.S. 821, 112 L. Ed. 2d 42, 111 S. Ct. 68 (1990), rehearing denied, Liffiton v. United States, 498 U.S. 1043, 112 L. Ed. 2d 708, 111 S. Ct. 720 (1991); United States v. Liffiton, 932 F.2d 957 (2d Cir. 1991).
Petitioner then filed a number of post-conviction motions, all of which were denied in an order by this court filed on June 20, 1995. On June 29, 1995, petitioner sent a letter to the court seeking relief from the judgment pursuant to Fed. R. Civ. P. 59(e) and 60. Liffiton thereafter filed the instant petition seeking a writ of coram nobis.
It should be noted that in this application, the petitioner only challenges the two perjury convictions. He does not challenge the three other convictions.
I. Injury to plaintiff's reputation is not a basis for the issuance of the writ.
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 recent rule in the Second Circuit is that "the writ will issue only where extraordinary circumstances are present." Nicks v. United States, 955 F.2d 161, 167 (2d Cir. 1992). The Nicks court identified three showings the petitioner had to make to obtain the writ. First, the petitioner had to show that "a fundamental error had occurred." Id. Second, petitioner must show that he continued to suffer "legal consequences from his conviction that may be remedied by granting of the writ." Id. To satisfy this element, petitioner must show that "although the term has been served, the subsequent disabilities may persist." Id. Other courts have termed this a "continuing legal disability." See United States v. Foont, 901 F. Supp. 729, 733 (S.D.N.Y. 1995). Finally, the Nicks court held that coram nobis relief should issue only when "sound reasons exist[ ] for failure to seek appropriate earlier relief." Nicks, 955 F.2d at 167, quoting U.S. v. Morgan, 346 U.S. 502, 512, 98 L. Ed. 248, 74 S. Ct. 247 (1954).
The "fundamental error" element outlined by Nicks does not present a significant controversy in this case. The court in petitioner's criminal trial for perjury decided the question of whether the alleged false statements were "material" and did not pass this issue on to the jury. Item Pp, PP 3-8. At the time that this case was tried, the issue of materiality was determined by the court and not the jury in this circuit. U.S. v. Ali, 68 F.3d 1468 (2d Cir. 1995).
In United States v. Gaudin, U.S. , 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995), the Supreme Court held that the issue of materiality, in the context of a criminal trial for making false statements, was a mixed question of law and fact which had to be decided by a jury. The Court, on appeal, vacated Gaudin's conviction because the trial judge decided that certain statements were material and so instructed the jury. Contrary to the government's assertion, the failure in the petitioner's case was not simply a question of a flawed jury instruction; that the jury did not consider materiality, an element of the crime charged, constituted a fundamental error after Gaudin.
Nor is the third element outlined in Nicks seriously contested by the government. Petitioner brought the present motion soon, if not immediately, after the decision in Gaudin. The change in the law represents a sound ...