Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-9-2008

USA v. Baird
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3697




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                                                 NOT PRECEDENTIAL


        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT




                       No. 07-3697




            UNITED STATES OF AMERICA

                            v.

                   FRANK L. BAIRD,
                             Appellant




      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
             (D.C. Crim. No. 94-cr-00215-1)
           District Judge: Hon. J. Curtis Joyner


        Submitted Under Third Circuit LAR 34.1(a)
                   September 8, 2008

Before: SLOVITER, FUENTES and NYGAARD, Circuit Judges

                (Filed: September 9, 2008)




                        OPINION
SLOVITER, Circuit Judge.

       On June 4, 2007, petitioner Frank Baird filed a petition for a writ of error coram

nobis in the District Court, requesting that his judgment of conviction be vacated and set

aside. At the time Baird filed his petition, he was serving a four-year term of supervised

release that commenced when he was released from prison on March 4, 2004. The

District Court dismissed the petition without comment and then denied a motion to

reconsider that dismissal, holding that Baird was barred from filing the petition while he

was still in custody and, alternatively, that Baird’s petition failed on its merits. Baird

filed a timely notice of appeal.1

                                              I.

       The writ of error coram nobis “is used to attack allegedly invalid convictions

which have continuing consequences, when the petitioner has served his sentence and is

no longer ‘in custody’ for purposes of 28 U.S.C.A. § 2255.” United States v. Stoneman,

, 105-06 (3d Cir. 1989). We have made plain that a petitioner on supervised

release is “in custody” for purposes of § 2255. See United States v. Essig, 

,

970 n.1 (3d Cir. 1993) (“Essig was still subject to a three year period of supervised

release. Therefore, the district court had jurisdiction when the petition was filed because

Essig was still ‘a prisoner in custody’ within the meaning of § 2255.”) (quoting Maleng v.



                    1
                     The District Court had jurisdiction over this case pursuant
             to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C.
             § 1291.

                                               2
Cook, 

, 491 (1989)). Because Baird was on supervised release at the time he

filed his petition, the District Court did not err in dismissing the petition on that ground.

See Matus-Leva v. United States, 

, 761 (9th Cir. 2002).

       While this appeal was pending, Baird’s term of supervised release ended. Because

he is no longer in custody, we are presented with the question whether to reach the

alternative ground for dismissal offered by the District Court or to affirm the District

Court’s dismissal solely because Baird was barred from filing his petition at the time it

was filed.

       “The writ of error coram nobis is available to federal courts in criminal matters

under the All Writs Act, 28 U.S.C.A. § 1651(a) . . . .” 

(citing

United States v. Morgan, 

(1954)). The Act provides that “[t]he Supreme

Court and all courts established by Act of Congress may issue all writs necessary or

appropriate in aid of their respective jurisdictions and agreeable to the usages and

principles of law.” 28 U.S.C. § 1651(a). Neither Baird nor the government argue that the

“in custody” requirement for access to the writ is jurisdictional. Therefore, because Baird

is now eligible for the writ, we will address the District Court’s alternative ground for

dismissal, as “[i]t would ‘be a futile gesture,’ . . . to force [him] to return to the district

court and file a [new] coram nobis petition.” United States v. Loschiavo, 

,

662 (2d Cir. 1976).




                                                 3
                                              II.

       In March 1994, the Drug Enforcement Agency (“DEA”) and local police began

investigating Baird in connection with a clandestine MDMA, i.e., “Ecstasy,” laboratory in

Bryn Mawr, Pennsylvania. MDMA is 3, 4-methylenedioxymethamphetamine, a Schedule

I controlled substance and a hallucinogen. In March and April 1994, an undercover agent

met with Baird on four occasions, three of them at Baird’s residence, which was located

in an apartment above his mother’s garage. Baird had laboratories both in his apartment,

and in the basement of his mother’s house.

       During the course of the undercover agent’s meetings with Baird, he saw assorted

lab equipment, chemicals, and drug paraphernalia, and received MDMA and

amphetamines that Baird had given to a confidential informant. During multiple visits,

Baird, while mixing chemicals, told the undercover agent that he was making Ecstasy,

and he identified a dark liquid in large five-gallon jars as the illegal substance. In a taped

conversation, Baird told the undercover agent that he was producing twenty kilograms of

Ecstasy, which would be worth $600,000.

       On April 20, 1994, DEA agents and local police executed a search warrant at

Baird’s apartment and at the adjacent house owned by his mother. Agents seized

chemicals and equipment that were suspected to be involved in the production of

controlled substances, eventually destroying those materials after they had been sampled.

The agents retrieved more than 200 grams of powder MDMA during their search. The



                                              4
agents also retrieved documents describing dosage administration, warnings, side effects,

and safety information about MDMA.

         A DEA chemist testified that 32.6 kilograms of liquid obtained from the site

contained MDMA. She testified that the liquid could be “quantitated” into 6.5 kilograms

of powder MDMA. Supp. App. at 386-87. The chemist testified that she used

chloroform to extract MDMA hydrochloride from the liquid. She further testified that

MDMA could have been produced using another precursor chemical, approximately 14

kilograms of which were found at the lab. Baird did not introduce a defense expert at

trial.

         After a jury trial, Baird was found guilty of conspiracy to manufacture and

distribute MDMA, manufacture of MDMA, possession of MDMA with intent to

distribute near a school, possession of MDMA with intent to distribute, attempt to

manufacture MDMA, creating a substantial risk of harm to human life while illegally

manufacturing MDMA, and maintaining a place for the manufacture of MDMA. After

the bulk of the convictions were affirmed 2 and Baird’s petition for certiorari was denied,

Baird filed a petition for habeas corpus under 28 U.S.C. § 2255, which was denied. After

his release from prison, Baird filed this petition.




                     2
                      The conviction for attempt to manufacture MDMA was
              ultimately vacated because it was a lesser included offense of the
              manufacturing charge.

                                               5
                                               III.

       In addition to the custody requirement discussed above, a writ of error coram nobis

is ordinarily appropriate to correct errors only when (1) “there was no remedy available at

the time of trial and where ‘sound reasons’ exist for failing to seek relief earlier,”

(quoting 

); (2) “there are errors of

fact of the most fundamental kind, that is, such as to render the proceeding itself irregular

and invalid,” 

internal quotation marks omitted); and (3) the petitioner has

shown “that he is suffering from continuing consequences of the allegedly invalid

conviction,” id. (citing 

-13). Because the District Court relied

solely on the second ground in denying Baird’s petition on the merits, we will limit our

review accordingly.

       On the basis of an expert report Baird commissioned after his release from prison,

he argues for the first time in this petition that “it is scientifically impossible to extract

MDMA HCl out of an aqueous solution into chloroform, [and thus] a ‘most fundamental

error’ at trial has occurred because it renders false the extraction process which the DEA

chemist testified she used.” Appellant’s Br. at 16. In an apparent attempt to explain how

this assertion, even if true, would entitle him to the “extraordinary remedy” of the writ,

, Baird argues, “if this scientific impossibility was known at

trial, the accuracy and truthfulness of all of [the DEA chemist]’s testimony could have

been questioned,” Appellant’s Br. at 16. We are not persuaded.



                                                6
       The evidence underlying Baird’s conviction was extensive, consisting of witness

testimony, recorded conversations between Baird and the undercover agent, dozens of

photos of the clandestine laboratories, overwhelming physical evidence, and the

testimony of the DEA chemist. Baird’s attempt to question one aspect of the chemist’s

testimony more than ten years after it was entered into evidence is simply insufficient to

“render[] the proceeding itself irregular and invalid,” United States v. Mayer, 

, 69 (1914), in light of the overwhelming evidence of his guilt that goes unchallenged,

such as the more than 200 grams of powder MDMA found at his residence and the taped

admission that he was manufacturing Ecstasy for sale, cf. United States v. Sawyer, 

, 35 (1st Cir. 2001) (reversing grant of the writ because “there was sufficient

evidence to prove Sawyer’s guilt of honest services mail fraud apart from proof that he

violated any state law”). Accordingly, we will not disturb the District Court’s decision to

deny Baird’s petition for the writ on its merits.

                                             IV.

       For the reasons set forth, we will affirm the District Court’s orders denying the

petition.




                                              7