JOHN H. RICH, III, Magistrate Judge.
The petitioner, Carole Swan, has moved, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct her sentence. See Motion for Reduction ("Motion") (ECF No. 462). In 2014, following two separate jury trials, the petitioner was convicted of three counts of Hobbs Act extortion, 18 U.S.C. § 1951(a), as well as five counts of tax fraud and two counts of making false statements to obtain federal employees' compensation. See Judgment (ECF No. 358) at 1; Jury Verdicts (ECF Nos. 167, 273). The court sentenced the petitioner to a total of 87 months in prison. See Judgment at 2. The petitioner appealed from the convictions on the basis that the court erred in denying a motion to suppress; the First Circuit affirmed. See United States v. Swan, 842 F.3d 28, 29 (1st Cir. 2016).
In the petitioner's section 2255 motion, she seeks to vacate the extortion conviction. See Motion at [1]. The petitioner argues that she is entitled to relief based on the Supreme Court's interpretation, in McDonnell v. United States, ___ U.S. ___, 136 S.Ct. 2355 (2016), of the term "official act" under 18 U.S.C. § 201(a)(3). See id. The petitioner also argues that there is insufficient evidence to support the extortion conviction. See id. at [3]-[4].
Following a review of the Motion and the government's request for summary dismissal, I recommend that the court grant the government's request, deny relief, and dismiss the Motion.
Superseding Indictment (ECF No. 112) at 1. Counts 1 through 3 of the superseding indictment each alleged a date on which a Hobbs Act crime occurred and a dollar amount involved. See id. Count 1 was on or about January 25, 2010, in the amount of $3,000; Count 2 was on or about December 3, 2010, in the amount of $7,000; and Count 3 was on or about February 3, 2011, in the amount of $10,000. See id. In September 2013, the jury found the petitioner guilty of Counts 1 through 3.
The petitioner appealed from the convictions on the basis that the court erred in denying a motion to suppress, and the First Circuit affirmed. See Swan, 842 F.3d at 29.
The petitioner initially filed her section 2255 motion on April 20, 2017, characterizing it as a motion for relief pursuant to 18 U.S.C. § 3582. See Motion for Reduction (ECF No. 445) at [1]. The government argued that the motion should be construed as a request for relief under 28 U.S.C. § 2255. See Government's Supplemental Response in Opposition ("Response") (ECF No. 456) at 13. The court agreed with the government and issued an order pursuant to Castro v. United States, 540 U.S. 375 (2003), advising the petitioner that the motion would be construed as a section 2255 motion, "and therefore the rules against second or successive motions will apply to any future motions under 28 U.S.C. § 2255." See Castro Order (ECF No. 460) at 1. The court gave the petitioner the opportunity to withdraw or amend the motion. See id.
The petitioner informed the court that she chose not to withdraw or amend the motion. See Petitioner's Response to Castro Order (ECF No. 461) at 1. The petitioner's initial filing (ECF No. 445) was then docketed at ECF No. 462 as a section 2255 motion. See Motion.
The government requests a summary dismissal. See Government's Response in Opposition (ECF No. 467) (relying on ECF Nos. 450, 456).
A person may move to vacate his or her sentence on one of four different grounds: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States"; (2) "that the court was without jurisdiction" to impose its sentence; (3) "that the sentence was in excess of the maximum authorized by law"; or (4) that the sentence "is otherwise subject to collateral attack[.]" 28 U.S.C. § 2255(a); see also, e.g., Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994). The burden is on the section 2255 petitioner to establish that he or she is entitled to section 2255 relief. See, e.g., David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978).
A collateral challenge is not a substitute for an appeal. See, e.g., United States v. Frady, 456 U.S. 152, 165 (1982); Berthoff v. United States, 308 F.3d 124, 127 (1st Cir. 2002). A claim that is not raised on appeal is procedurally defaulted. See, e.g., Bousley v. United States, 523 U.S. 614, 621 (1998). "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either `cause' and actual `prejudice,' or that he is `actually innocent.'" Id. at 622 (quoting Murray v. Carrier, 477 U.S. 478, 485, 496 (1986)). Procedural default is an affirmative defense. See, e.g., Sotirion v. United States, 617 F.3d 27, 32 (1st Cir. 2010).
The government appropriately concedes that all claims in the petitioner's motion are timely under 28 U.S.C. § 2255(f)(1).
The petitioner's motion is based in part on McDonnell, in which the issue, on direct appeal followed by a grant of certiorari, was "the proper interpretation of the term `official act'" under 18 U.S.C. § 201(a)(3).
Id. at 2366 (citation omitted).
The Court recognized that a two-part test applies to determine whether the government has proven that the defendant engaged in an official act:
Id. at 2368. The Court clarified the definition of an official act as follows:
Id. at 2371-72. The Court held: "Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so) — without more — does not fit that definition of `official act.'" Id. at 2372.
The Court noted that its decision was based in part on established Supreme Court precedent: "It is apparent from [United States v. Sun-Diamond Growers of Calif., 526 U.S. 398 (1999)] that hosting an event, meeting with other officials, or speaking with interested parties is not, standing alone, a `decision or action' within the meaning of § 201(a)(3), even if the event, meeting, or speech is related to a pending question or matter." Id. at 2370. The Court also clarified that an agreement to act is sufficient: "Under this Court's precedents, a public official is not required to actually make a decision or take an action on a `question, matter, cause, suit, proceeding or controversy'; it is enough that the official agree to do so." Id. at 2370-71.
McDonnell may eventually be held to apply retroactively to cases on collateral review.
The petitioner contends, at bottom, that she has established cause for the procedural default because the Supreme Court's decision in McDonnell was novel, and, thus, not available to counsel before McDonnell was decided. See Motion at [3] ("The Supreme Court's decision [in McDonnell] has changed the landscape. . . ."). In Bousley, the Supreme Court noted that it had previously "held that a claim that `is so novel that its legal basis is not reasonably available to counsel' may constitute cause for a procedural default[.]" Bousley, 523 U.S. at 622 (quoting Reed v. Ross, 468 U.S. 1, 16 (1984)). However, the Supreme Court also concluded in Bousley that the futility of a defaulted argument does not in itself establish cause for the default. See id. at 623 ("`futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time'") (quoting Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982)) (internal quotation marks omitted).
It appears that neither the First Circuit nor this court has addressed the issue of whether the failure to raise a McDonnell-type argument, before the Supreme Court decided McDonnell, constitutes cause for a procedural default. However, district courts in other jurisdictions have concluded that the failure to raise a McDonnell-type argument prior to the Supreme Court's decision in McDonnell does not constitute cause for a procedural default. See Elgawhary v. United States, Civil Action No. DKC 17-1762, Criminal No. DKC 14-0068, 2018 WL 398284, at *3 (D. Md. Jan. 11, 2018) (recognizing that "[t]he question is not about the novelty or importance of the Supreme Court's decision [in McDonnell] but rather whether the argument that led to that decision was novel[,]" and concluding that the argument was not novel, but rather "commonplace and routine"); United States v. Ciavarella, CRIMINAL NO. 3:09-CR-272, 2018 WL 317974, at *10 (M.D. Pa. Jan. 8, 2018) (concluding that the petitioner had not established cause for a procedural default); United States v. Jefferson, No. 1:07-cr-209, 2017 WL 4423258, at *10 (E.D. Va. Oct. 4, 2017) (concluding that the petitioner had not procedurally defaulted the claim because he "consistently challenged the government's definition of `official act'" and opposed the relevant jury instruction).
In the absence of controlling authority, I adopt the reasoning in Elgawhary and conclude that because a McDonnell-type argument "was an available argument that Petitioner did not make[,]" Elgawhary, 2018 WL 398284, at *3, the petitioner has failed to demonstrate cause for the procedural default.
In Frady, the Supreme Court reaffirmed the standard for prejudice that applies in a collateral action in which a petitioner argues a jury instruction was erroneous. 456 U.S. at 154, 169. The court must determine "`whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is undesirable, erroneous, or even universally condemned.'" Id. at 169 (quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977)) (internal quotation marks omitted).
The petitioner contends the jury instructions on the Hobbs Act charge were in error under McDonnell. See Motion at [1]-[2]. The relevant instructions were as follows:
See Transcript of Proceedings ("Trial Tr."), Vol. VI (ECF No. 424), at 1333-34. The record reflects that the petitioner did not request an instruction on the definition of "official act," and the government, by arguing a procedural default, see Response at 14, represents as much.
The jury instructions did not define the term "official act," although they were tailored to the elements of the crime of Hobbs Act extortion under color of right, as the elements have been expressed by the Supreme Court:
Ocasio v. United States, ___ U.S. ___, 136 S.Ct. 1423, 1428, 1432 (2016) (quoting Evans, 504 U.S. at 260, 268) (holding that, for purposes of a conspiracy to violate the Hobbs Act, "[i]t is sufficient to prove that the conspirators agreed that the underlying crime be committed by a member of the conspiracy who was capable of committing it") (emphasis in original).
In United States v. Boyland, 862 F.3d 279, 290-91 (2d Cir. 2017), the Second Circuit concluded that similar jury instructions were flawed under McDonnell. The court noted that "the jury was told that in order to convict on [Hobbs Act extortion] counts it needed to find that Boyland knew that any money he accepted `was offered in exchange for a specific exercise of [Boyland's] official powers.'" Boyland, 862 F.3d at 290 (citation omitted). The court concluded:
Id. at 291. Although the instructions in the petitioner's trial were not overbroad, as were the instructions in McDonnell, they nonetheless could be considered flawed following McDonnell because they did not explicitly incorporate the definition of "official act" under section 201(a)(3). See id. at 290-91.
Yet, regardless of whether or not the instructions were in error, the standard of review under Frady requires the court to consider whether the petitioner suffered actual prejudice, viewing the jury instructions in "the total context of the events at trial." Frady, 456 U.S. at 169.
Id. (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)); see also, e.g., Ciavarella, 2018 WL 317974, at *12-13 (holding that although the jury instructions were "arguably overbroad" under McDonnell, the court could not find that the petitioner "would have benefitted from more restrictive instructions[,]" and, thus, he failed to demonstrate "that the instructional error `so infected the entire trial that the resulting conviction violate[d] due process'") (quoting Frady, 456 U.S. at 169). In Boyland, the Second Circuit held, on plain error review on appeal, that the failure to provide jury instructions on the definition of official acts did not affect the appellant's substantial rights. 862 F.3d at 291-92.
The petitioner did not suffer prejudice by virtue of the lack of instructions on the definition of "official act" under 18 U.S.C. § 201 because her "conduct falls squarely within the category of `official acts' as clarified by McDonnell[,]" and, therefore, more explicit jury instructions would not have altered the outcome of the trial. Ciavarella, 2018 WL 317974, at *13 (citing Repak, 852 F.3d at 254 (concluding that the facilitation of a contract award is an "official act" under McDonnell)). See also, e.g., United States v. Skelos, 707 F. App'x 733, 739 (2d Cir. 2017) (summary order) ("Using one's influence as a high ranking state official to push through county legislation and to bestow a county-issued contract are indisputably formal exercises of governmental power constituting official acts under McDonnell.").
The evidence of the petitioner's official acts consisted in part of the testimony of Frank Monroe (1) that the petitioner, a selectman, in early 2010 offered Monroe a no-bid extension of a plowing contract, eventually signed by the petitioner, pursuant to which the petitioner was listed as a contact person, see Trial Tr. Vol. I (ECF No. 418) at 144-48, 151-54; Trial Tr. Vol. II (ECF No. 419) at 229-32; (2) that the petitioner ordered sand in December 2010, see Trial Tr. Vol. I at 167-70; and (3) that in January 2011, the petitioner ordered additional sand and gave Monroe instructions regarding the invoice for the sand delivery, see id. at 172-74.
Each of these acts meets both parts of the two-part test under McDonnell, see 136 S. Ct. at 2368, and, therefore, each constitutes an official act under 18 U.S.C. § 201(a)(3), see, e.g., Repak, 852 F.3d at 254; United States v. Conley, ___ F. Supp.3d ___, 3:13-CR-00028-GFVT-REW-1, 2017 WL 5953153, at *4-5 (E.D. Ky. Dec. 1, 2017) (concluding that "[t]he process by which certain public construction contracts were awarded" satisfied the first prong of the McDonnell test; the submission of information that formed the basis for contract awards satisfied the second prong; and, therefore, the petitioner was not entitled to habeas relief following his conviction for honest services fraud).
Given that the petitioner's actions were official acts under section 201, there is no reasonable probability that the failure to include the definition of the term "official act" in the jury instructions affected the petitioner's substantial rights, and, therefore, the petitioner cannot demonstrate actual prejudice. See, e.g., Boyland, 862 F.3d at 291-92; United States v. Bailey, 286 F.3d 1219, 1223 (10th Cir. 2002).
The petitioner's remaining claims allege that there was insufficient evidence in support of the extortion conviction; specifically, she contends there is insufficient evidence (1) that she wrongfully received a benefit from Monroe; (2) that she pressured or threatened Monroe; or (3) that her actions involved interstate commerce. See Motion at [4].
"Issues not pursued on direct appeal are subject to the cause and prejudice standard under [Frady, 456 U.S. at 167-68]." Akitoye v. United States, No. 93-1217, 1993 WL 532395, at *1 (1st Cir. Dec. 27, 1993) (per curiam) (holding that the appellant was "barred from raising [a] claim concerning the sufficiency of the evidence unless he c[ould] show cause and prejudice"); see also, e.g., Rivera-Rivera v. United States, 827 F.3d 184, 187-88 & n.8 (1st Cir. 2016) (holding that the petitioner failed to demonstrate prejudice on a claim of ineffective assistance for counsel's failure to challenge the sufficiency of the evidence of interstate commerce when the evidence was in fact sufficient).
The government introduced sufficient evidence that the petitioner, when she was a selectman, obtained a payment to which she was not entitled, knowing that the payment was made in return for official acts. See Ocasio, 136 S. Ct. at 1428. Monroe testified that in late January or early February of 2010, the petitioner told him that he had a "lucrative contract" with the town; that the petitioner demanded that he pay her $3,000 from a payment he was to receive from the town for delivering sand in January 2010; and that he complied with the petitioner's demand. See Trial Tr. Vol. I at 159-65. Monroe testified that in December 2010, the petitioner demanded that he pay her $7,000 from the $20,250 payment he received from the town for a sand delivery, and he complied. See id. at 166-71. Monroe testified that the petitioner demanded that he overstate the quantity of sand delivered in January 2011, and that he pay her $10,000 from the check she had provided Monroe for the sand delivery. See id. at 173-75. Monroe informed the Kennebec County Sheriff's Office, and, as part of a sting operation, he handed over a bag of cash to the petitioner. See id. at 177-80, 200-05. The evidence was sufficient to prove the petitioner obtained the payments, to which she was not entitled, knowing that they were in return for official acts. See Ocasio, 136 S. Ct. at 1428. Therefore, the petitioner has demonstrated neither cause nor prejudice. See Frady, 456 U.S. at 167-68; Rivera-Rivera, 827 F.3d at 187-88 & n.8.
The government also introduced sufficient evidence to establish the element of interstate commerce. See 18 U.S.C. § 1951(a) & (b)(3). The First Circuit has held that "`the government need only show a realistic probability of a de minimis effect on interstate commerce[] in order to bring extortion within the reach of the Hobbs Act.'" United States v. Vázquez-Botet, 532 F.3d 37, 60 n.19 (1st Cir. 2008) (quoting United States v. Rivera-Medina, 845 F.2d 12, 15 (1st Cir. 1988)). A de minimis effect is established "if conduct `minimally depletes the assets of an entity doing business in interstate commerce.'" United States v. Buffis, 867 F.3d 230, 234 (1st Cir. 2017) (quoting United States v. Cianci, 378 F.3d 71, 99 (1st Cir. 2004)).
Monroe testified that the equipment he used in his plowing and sanding business was manufactured outside of Maine and that, due to his payments to the petitioner, he had difficulty meeting the payment terms on some equipment he had financed. See Trial Tr. Vol. I at 208-18. The evidence was sufficient to establish that the petitioner's conduct minimally depleted Monroe's assets, and, thus, it satisfied the interstate commerce element of the crime. See Buffis, 867 F.3d at 234.
The petitioner's contention that evidence of a threat was lacking fails because a threat is not an element of the crime of Hobbs Act extortion by color of right. See id. at 235.
Id. In short, the petitioner's claim fails because evidence of duress or a threat was unnecessary to the Hobbs Act extortion conviction. See id.
Based on the foregoing analysis, an evidentiary hearing is not warranted under Rule 8 of the Rules Governing Section 2255 Cases. In addition, I recommend that the court deny relief and dismiss the petitioner's motion for habeas relief under 28 U.S.C. § 2255. I further recommend that the court deny a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 Cases because there is no substantial showing of the denial of a constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).
