III. The Government's Motion to Dismiss
The government moves to dismiss defendant's motion to the extent that it relates to the conspiracy conviction on Count 1, contending that the Court lacks subject matter jurisdiction because defendant is no longer "in custody" for the purposes of 28 U.S.C. Section 2255.
As described above defendant has completed the term of imprisonment imposed for his Count 1 conviction. His probationary sentence was imposed for his conviction on the other counts. Relief under 28 U.S.C. Section 2255 is only available to "[a] prisoner in custody under sentence of a court." A person serving a term of probation may proceed under Section 2255, but no probationary term was imposed on Count 1. Thus defendant may not proceed under Section 2255 as to that count.
Recognizing this bar, defendant urges that his motion be treated as an application for a writ of error coram nobis with respect to the conspiracy. The coram nobis writ allows the Court to vacate its judgments "for errors of fact - in those cases where the errors [are] of the most fundamental character, that is, render the proceeding itself invalid." United States v. Mayer, 235 U.S. 55, 69, 59 L. Ed. 129, 35 S. Ct. 16 (1914). Further, mere moral stigma of a conviction will not suffice. An applicant must show that he is suffering some present adverse legal consequence from his prior conviction. United States v. Cariola, 323 F.2d 180, 182 (3d Cir. 1963).
Defendant asserts that under New Jersey law the effect of his federal conviction is to disqualify him from voting and serving as a juror, N.J.S.A. 2C:51-3, N.J.S.A. 19:4-1, N.J.S.A. 19:34-4 and to disqualify him from holding certain elected public positions, N.J. Constit. Article 4, Section I. While New Jersey's voting disabilities do not continue after a person has served his prison term and completed any probationary period, N.J.S.A. 19:4-1 (1987 Pocket Part), the remaining disabilities are perhaps sufficient under the cases to permit him to seek issuance of the writ provided the errors complained of were sufficiently serious.
IV. McNally's Effect on the Conviction
Defendant first argues that under McNally it was error to charge that "the government is not required to prove that any person lost any money or that any person was not able to subsequently recover lost money." This was the settled law of this Circuit prior to McNally. It was held that the actual success of a mail fraud scheme is immaterial and that the statutory offense is the devising of a scheme the purpose of which was to obtain money or property by false representations. United States v. Pearlstein, 576 F.2d 531, 542 (3d Cir. 1978).
As I read McNally, it holds that under the mail fraud statute the scheme must involve tangible or intangible property rights. The intangible rights of the citizenry to good government as the subject of a scheme will not suffice. I do not read McNally as holding that in order to fall under the proscription of the mail fraud statute the scheme must not only involve money or property, but also that the scheme must be successful. U.S. v. Runnels, 833 F.2d 1183 (6th Cir. 1987). Thus defendant's first ground for relief is rejected.
Next defendant urges that the indictment, the trial and the jury instructions permitted the jury to convict defendant for conduct outside the proscription of the mail fraud statute. Specifically, defendant contends that the jury, like the McNally jury, was permitted to convict him of mail fraud if it found that he participated in a scheme to defraud either Passaic Valley or NJDEP of something other than money or property.
It is true that prior to McNally many courts permitted the conviction of corrupt politicians and others without finding a fraudulent scheme designed to effect a transfer of money or property. The Court permitted a mail fraud conviction upon a finding that the citizens had been defrauded of their intangible right to fair and honest government. McNally closed the door on that kind of charge. Defendant urges that in the present case he was accused of both a permissible and impermissible mail fraud charge. The permissible charge was that defendants devised a fraudulent scheme designed to obtain payments from hazardous waste generators through the use of false representations that hazardous waste was disposed of legally. The impermissible charge was that defendants devised a scheme which, although it included false representations to the NJDEP and Passaic Valley, was not designed to obtain money and property from those entities. Since it cannot be known on which scheme the jury based its conviction, defendant argues, the judgment of conviction must be set aside. Dealing with a similar issue the Court of Appeals has stated that if "the jury instructions allowed convictions for conduct outside the proscription of the mail fraud statute, such instructions would constitute both plain error and a defect affecting [defendant's] due process rights." United States v. Piccolo, 835 F.2d 517, 519 (3d Cir. 1987).
In Piccolo the Court's charge given before McNally, defined the mail fraud alleged in the indictment as using and causing "the mails to be used to further [a] scheme to defraud United Engineers and Delmarva Power and Light Company of money, and United Engineers of the honest and faithful services of Timothy McCuen." The Court of Appeals assumed that a scheme the sole purpose of which was to deprive United Engineers of its intangible right to the faithful services of McCuen would not state a mail fraud offense under McNally. Nevertheless, it found that the jury could not, given the totality of the instructions, have convicted Piccolo unless it found that an object of the scheme in which he participated was to obtain money from Delmarva Power.
I need not decide whether in the present case the mere submission of false information to Passaic Valley and to NJDEP for the purpose of continuing to illegally dump waste in the Passaic Valley sewer and for the purpose of continuing to illegally haul and dump hazardous waste would constitute a violation of the mail fraud statute. Such conduct is very different from the more nebulous deprivation of the intangible right to fair and honest government as in McNally, or the deprivation of the honest and faithful services of an employee as in Piccolo. By means of false representation in the present case defendants used facilities of Passaic Valley which they were not authorized to use and defendants operated under an NJDEP permit which, had the true facts been known, would have been revoked, or they operated without a proper permit when they should have had one. I am not at all convinced that McNally would exclude such conduct resulting in that kind of loss to Passaic Valley and NJDEP from the reach of the mail fraud statute.
However, that question need not be decided. The pretrial proceedings in this case, the trial itself and the jury instructions read as a whole, make it abundantly clear that a single scheme was charged and proved and that the scheme contemplated false representations to Passaic Valley, NJDEP and generators for the purpose of obtaining continued business and payments from the generators.
At the time of pretrial motions I struck the allegations of the indictment charging a conspiracy to defraud the citizens of the State of New Jersey of unspecified and intangible rights. I concluded that the object of the conspiracy was "to make false statements to induce generators and public entities to believe the defendants were disposing of hazardous wastes legally, all so that defendants could continue their business and continue to charge the generators."
The case was tried on that basis and overwhelming proofs were produced establishing the false statements to the three categories of entities, the illegal dumping, and the receipt of payment by defendants from the generators who relied on the statements given to them.
The charges specifically referred to the single scheme, and the portions of the indictment describing in detail the components of that scheme were read in full. The unitary scheme alleged was referred to in the conspiracy portion of the charge and in the portion of the charges defining mail fraud.
The jury charges read in their entirety required the jury to find that the scheme and artifice to defraud included not only the plan intended to deceive, but also a plan intended to obtain by false representations money or property from the generators. The representations made to Passaic Valley and to NJDEP were a part of the overall scheme.
The verdict shows that of necessity the jury found that there existed a plan intended to obtain by false representations money or property. Not only was there a conviction on the conspiracy count and on the counts alleging mailings to NJDEP, but there was also a conviction on the counts alleging mailings to defendants' hazardous waste customers whose continued business and payments were the objects of the mail fraud scheme.
Thus I conclude that even if a scheme involving only misrepresentations to Passaic Valley and NJDEP for the sole purpose of influencing their action was not covered by the mail fraud statute, that was not the scheme alleged and proved in this case. The jury here could not have convicted defendant unless it found that an object of the conspiracy was to obtain contracts and money from the generators of hazardous waste.
Thus there has been no violation of the rules set forth in McNally. Defendant's motion for relief pursuant to 28 U.S.C. Section 2255 and for a writ of error coram nobis will be denied.
The government is requested to present an appropriate form of order.
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