U.S. v. Sawyer

74 F.Supp.2d 88

UNITED STATES of America, Plaintiff-Respondent, v. F. William SAWYER, Defendant-Petitioner.

No. Cr.A. 96-10312EFH.

No. Civ.A. 99-11603EFH.

United States District Court, D. Massachusetts.

November 15, 1999.

COPYRIGHT MATERIAL OMITTED

John M. Griffin, U.S. Attorney's Office, Boston, MA, for USA, respondent.

Thomas R. Kiley, Cosgrove, Eisenberg & Kiley, Albert F. Cullen, Jr., Law Offices of Albert F. Cullen, Jr., Boston, MA, for F. William Sawyer, defendant.

MEMORANDUM AND ORDER

HARRINGTON, District Judge.

On November 27, 1996, F. William Sawyer pled guilty to a one-count information charging him with mail fraud in violation of 18 U.S.C. §§ 1341, 1346. He was sentenced to a term of one year of probation and a $5,000 fine. Sawyer now brings this petition for Writ of Error Coram Nobis, seeking to vacate his conviction and expunge his record. See 28 U.S.C. § 1651. For the following reasons, the writ is granted, the conviction is vacated, and the record is expunged.

I. BACKGROUND

A. Factual History

Between 1986 and 1993, Sawyer was a senior lobbyist with the John Hancock Mutual Life Insurance Company ("Hancock"). At the time, Hancock was the largest life insurance company in Massachusetts, and had an interest in the state insurance laws. Sawyer, employed by Hancock's Government Relations Department, was charged with lobbying the Massachusetts Legislature on behalf of Hancock. As part of his duties, Sawyer was required to communicate with Massachusetts legislators, protect the interests of Hancock, and establish and maintain positive relationships with legislators and industry members.

During this time, Sawyer established relationships with various members of the Massachusetts Legislature. Specifically, Sawyer sought to maintain positive relations with members of the Legislature's Joint Committee on Insurance, composed of state senators and representatives. While acting as a lobbyist, Sawyer established relations with many of the house members of the Joint Committee on Insurance.¹ In 1990, Sawyer, in various memoranda to Hancock, acknowledged that some bills passed by the Joint Committee were favorable to Hancock.

In an effort to establish positive relationships with Massachusetts legislators, Sawyer paid for their meals, rounds of golf, and other entertainment. These expenditures were treated as business expenses and were reimbursed by Hancock. The head of Hancock's Government Relations Department reviewed and approved Sawyer's expenses on a monthly basis. The prosecution against Sawyer was triggered by a December, 1992 trip to Puerto Rico where Sawyer, other lobbyists, and Massachusetts legislators traveled for a legislative conference.²

Sawyer indicated at the time that the expenses were consistent with usual industry practice. Furthermore, Sawyer stated that the expenditures were necessary in order to develop, build, and maintain relationships with the legislators. During the course of his lobbying efforts, Sawyer caused the mailing of items related to the expenditures on behalf of legislators, including reimbursements for golf.

B. Procedural History

On July 7, 1994, a federal grand jury returned an indictment against Sawyer, charging him with various counts of mail fraud, wire fraud, interstate travel with intent to commit bribery, and conspiracy. On November 25, 1994, Sawyer moved to dismiss the charges against him. Sawyer argued, in part, that the government had failed to show or even allege a link between any gratuity given and a specific, identifiable legislative act.³ The District Court Judge denied the motion. Following the trial, a jury convicted Sawyer of some of these counts. On May 30, 1996, the United States Court of Appeals for the First Circuit vacated the convictions and remanded the case, based upon the District Court's overbroad reading of the law rendered in its jury instructions.⁴ In vacating Sawyer's original convictions, the First Circuit recognized that this was a "novel" federal mail fraud prosecution, and "that prosecutions on facts like these have not generally been brought." See United States v. Sawyer, 85 F.3d 713, 741 (1st Cir.1996).

The First Circuit was "concerned with the close relationship between lobbying activities that are lawful from the standpoint of federal law, even if deplorable, and ... slightly more extreme versions of such conduct that can constitute federal violations." See id. at 741. The Court of Appeals was deeply troubled because Sawyer's conduct was "not very different ... from the kind of routine cultivation of friendship." See id. Indeed, the First Circuit went on to say that, "[t]he practice of using hospitality, including lavish hospitality, to cultivate business or political relationships is longstanding and pervasive." Id. The Circuit Court continued, "if Sawyer had this limited intent — to cultivate friendship rather than to influence an official act — the federal statutes here involved would not be violated." Id.

On November 27, 1996, Sawyer appeared before this Court and pled guilty to a one-count information charging him with mail fraud in violation of 18 U.S.C. §§ 1341, 1346 ("the Plea Hearing"). The government charged that Sawyer had engaged in activity which had deprived the Commonwealth of Massachusetts and its citizens of the right to the honest services of their state legislators, and used the mails in furtherance of this activity. At the Plea Hearing, the government alleged that Sawyer engaged in conduct intended to cause state legislators to violate their duty to the public. In order to establish a violation of the federal mail fraud statute, the government was required to prove that Sawyer had violated Massachusetts law.⁵

At the Plea Hearing before this Court, the government specified that the one-count information was based upon one violation: use of the mails to send a check in the amount of $183.75 in order to reimburse Massachusetts legislators' golf fees. See Sawyer, Criminal No. 96-10312(EFH), Plea Hearing at 7. The government specifically stated that Sawyer gave "gratuities" in the form of free golf to state legislators. See id. at 6. The government stated that the "gratuities" formed the basis of the charge in Count One of the information. See id. at 7. The government contended that these "gratuities" defrauded the Commonwealth of Massachusetts of the right to the honest services of members of the Massachusetts Legislature.⁶ See id. At the Plea Hearing, the government neither offered any evidence, nor alleged that a link existed between the gratuities given and any specific, identifiable, official act of any member of the Massachusetts Legislature. See id.

This Court then accepted Sawyer's plea, and sentenced him to a term of one year of probation and a $5,000 fine. See id. at 7. At the Plea Hearing, however, this Court noted with great concern and disdain that this case demonstrated a "threat to liberty and the reputation of individuals." See id. at 9. This Court strongly cautioned against the "selective transformation of state laws, administered by the Massachusetts State Ethics Commission, and typically enforced by the imposition of civil penalties, into a serious federal felony under the broad language and elastic interpretation of the federal criminal fraud statute." Id. This Court noted that Sawyer's prosecution illustrated the "innovative prosecutorial process called the federalization of state laws." See id.

This Court continued, "the threat is exacerbated here because this federalized prosecution is applied for the first and only time against a state lobbyist who is not himself a public official.... The fact that even the government acknowledges that criminal fraud was not intended here is established in my mind by the fact that after this [long] and tortuous ordeal they are able to enter into a plea ... to one count of ... mailing in furtherance of the fraud in the amount of about $183. Does this result justify the long ordeal that this defendant has undergone? I don't think so." Id. at 10-11. After the plea was entered, Sawyer paid his fine and served the one year sentence of probation.

Over two years later, the United States Supreme Court issued a decisive opinion concerning the federal gratuity statute, 18 U.S.C. § 201(c). See United States v. Sun-Diamond Growers of California, 526 U.S. 398, 119 S.Ct. 1402, 1411, 143 L.Ed.2d 576, (1999). Specifically, the Supreme Court held that in order to establish a violation of the federal gratuity statute, the government must prove a specific link between the "gratuity" conferred upon a public official and a particular, identifiable, "official act for or because of which it was given." See id.

Subsequently, on July 2, 1999, Sawyer filed the instant Writ of Error Coram Nobis pursuant to 28 U.S.C. § 1651. Sawyer seeks to vacate his prior conviction and expunge his record on the basis that the Supreme Court decision in Sun-Diamond constitutes a substantial intervening change in the law rendering his plea invalid.

II. CORAM NOBIS

A. History of Coram Nobis

As early as the sixteenth century, writs of error coram nobis were developed at common law to relieve litigants from judicial wrongs for which there was no remedy. See Romualdo P. Eclavea, Annotation, Availability Under 28 U.S.C. § 1651 of Writ of Error Coram Nobis to Vacate Federal Conviction where Sentence has been Served, 38 A.L.R.Fed. 617 (1978). Originally, these writs were used to allow courts to correct only their own errors of fact in extremely limited situations. See id. In 1946, Congress abolished the common law writ of error coram nobis in civil cases when it adopted an amendment to Federal Rule of Civil Procedure 60(b).⁷ See Fed R.Civ.P. 60(b). In 1954, the United States Supreme Court clarified that Rule 60(b) did not completely abolish coram nobis; it was still available in limited circumstances for criminal cases. See United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 252, ...