United States v. Woodward

UNITED STATES Respondent,

v.FRANCIS H. WOODWARD, Petitioner.

CRIMINAL ACTION NO. 95-10234-DPW

CIVIL ACTION NO. 12-11431-DPW

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

October 10, 2012

MEMORANDUM AND ORDER

Francis H. Woodward seeks a writ of error coram nobis pursuant to the All Writs Act, 28 U.S.C. § 1651, in an effort to vacate and expunge his 1997 convictions for honest services mail and wire fraud. He bases his petition on the Supreme Court's decision in Skilling v. United States, 130 S. Ct. 2896 (2010), handed down over thirteen years after the original judgment of conviction entered.

I. BACKGROUND

A. Factual Background

I recite the facts relevant to my analysis here, drawing on several other opinions that have already comprehensively detailed the circumstances of the scheme leading to Woodward's prosecution and conviction. See United States v. Woodward, 149 F.3d 46, 51-54 (1st Cir. 1998) (affirming Woodward's conviction on directappeal); United States v. Sawyer ("Sawyer I"), 85 F.3d 713, 720-22 (1st Cir. 1996) (vacating and remanding conviction of Woodward's co-conspirator); United States v. Sawyer ("Sawyer II"), 239 F.3d 31, 35-36 (1st Cir. 2001) (vacating writ of coram nobis that had, in turn, vacated guilty plea entered after remand in Sawyer I).

Woodward was a member of the Massachusetts House of Representatives from January 1977 until April 1992, serving as House Chair of the Joint Committee on Insurance from January 1985 through January 1991. From 1984 through 1992, Woodward received at least $8,740 in payments--in the form of meals, rounds of golf, and other entertainment--from William Sawyer, a lobbyist for John Hancock Mutual Life Insurance Company, one of the two largest insurance companies in Massachusetts. Although Woodward claimed he and Sawyer were merely close friends, the payments "were not mutual but rather operated in one direction only. The standard operating procedure was for Sawyer to pay for meals, drinks and golf for Woodward; Woodward did not make similar payments for Sawyer." Woodward, 149 F.3d at 58.

The First Circuit summarized the suspicious pattern of these payments:

In 1984 and 1985, before Woodward became chair of the Committee and for the first year afterward, Woodward accepted gratuities in the range of $200-300 from Sawyer/Hancock. In 1986 there was a marked increase to $2,527, including over $1,800 to cover the air fare, hotel, and tickets (for him and his wife) to attend the Super Bowlin New Orleans. In 1987-91, Woodward received gratuities in the amount of $1,547, $1,093, $5133, $1,230, and $1,324. Woodward served as committee chair during all but the last of these years. During his last four months in the legislature, January through April 1992, he received only $16, and his gratuities dropped to $0 after he resigned from office in April. After Woodward was replaced as committee chair by Rep. Francis Mara, Sawyer began wining and dining Mara in the same manner as he had Woodward.

United States v. Woodward, 149 F.3d 46, 53 (1st Cir. 1998).

Sawyer's payments to Woodward were paralleled by results. Woodward regularly and actively supported the insurance industry's positions on bills of importance. Over the course of Woodward's tenure, the legislature considered about 600 bills of interest to the life insurance industry; Woodward opposed the industry's position on only thirty-one of those bills, most of which related to mandated health insurance benefits of less importance to the life insurance industry. Woodward, 149 F.3d at 61. According to Robert J. Smith, research director for the Insurance Committee, "Woodward was the most

pro-life-insurance-industry chair of the Insurance Committee during Smith's tenure, 1985-95 (which included six other House and Senate chairs)." Woodward, 149 F.3d at 52.

Meanwhile, Woodward failed to disclose the payments he received from Sawyer on his Statements of Financial Interest, as was required by Mass. Gen. Laws ch. 268B, § 5. See Woodward, 149 F.3d at 62-63. Woodward himself called his failure to comply with the Massachusetts reporting statute "reprehensible." Id. at62.

B. Procedural History

Woodward was charged in a 28-count indictment in 1995. In October 1996, he was convicted after trial on five counts: one count each of honest services mail and wire fraud, 18 U.S.C. §§ 1341, 1343 (Counts 4 and 9); two counts of interstate travel to commit bribery under the Travel Act, 18 U.S.C. § 1952 (Counts 14 and 24); and conspiracy to commit these offenses, 18 U.S.C. § 371 (count 1).

Following the verdict, I granted judgment of acquittal on Count 24, as duplicitous. The First Circuit affirmed Woodward's remaining convictions. United States v. Woodward, 149 F.3d 46 (1st Cir. 1998). In a collateral attack under 28 U.S.C. § 2255, after the convictions became final but before Woodward began serving his sentence, I vacated and dismissed the convictions on Counts 1 and 14 based on intervening interpretations of the federal and state gratuity statutes in United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999), and Scaccia v. State Ethics Comm'n, 727 N.E.2d 824 (Mass. 2000), respectively. United States v. Woodward, No. 99-11132, Memorandum and Order (D. Mass. Feb. 9, 2001).

In the original and the amended judgments of conviction, I sentenced Woodward to 6 months of community confinement, 2 years of supervised release, a $5,000 fine, and a $100 specialassessment.

In November 2002, the Massachusetts State Board of Retirement rescinded Woodward's retirement benefits under the pension forfeiture provision of Mass. Gen. Laws ch. 32, § 15(4). That provision states: "In no event shall any member after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance . . . ." Id. Woodward was, however, entitled to recover his contributions to the pension plan, without interest. Id. The Supreme Judicial Court of Massachusetts rejected Woodward's challenge that the forfeiture action was time-barred. See generally State Bd. of Ret. v. Woodward, 847 N.E.2d 298 (Mass. 2006).

C. Legal Developments

This petition for coram nobis, filed in February 2012, was spurred by the Supreme Court's decision in Skilling v. United States, 130 S. Ct. 2896 (2010), which significantly narrowed the honest services theory of mail and wire fraud. To avoid constitutional vagueness concerns, Skilling limited honest services fraud to its "core meaning" of "schemes to defraud involving bribes and kickbacks." Skilling, 130 S. Ct. at 2907; id. at 2929-31. In doing so, the Court rejected the "undisclosed self-dealing" theory of honest services fraud, which it described as "the taking of official action by the employee that furthershis own undisclosed financial interests while purporting to act in the interests of those to whom he owes a fiduciary duty." Id. at 2932.

At the time of Woodward's conviction, by contrast, the government was not required to allege or prove a quid pro quo to establish honest services fraud. Rather, honest services fraud was understood to occur in two ways: "(1) the official can be influenced or otherwise improperly affected in the performance of his duties; or (2) the official can fail to disclose a conflict of interest." Woodward, 149 F.3d at 57.

Accordingly, the indictment in this case charged generally that Woodward "knowingly and willfully devised and executed a scheme and artifice to defraud the Commonwealth of Massachusetts and its citizens of their right to . . . honest services." Among the alleged means employed, many related to undisclosed conflicts of interest, but the indictment also charged that Woodward accepted "travel, lodging, golf, meals, tickets and other entertainment and benefits, in violation of his duty of honest services."

Woodward's petition argues that he was convicted on theories of honest services rejected by Skilling: (1) "an expanded definition of bribery that did not involve a bribe, kickback, or quid pro quo," and (2) an undisclosed self-dealing theory. Even if the indictment adequately charged quid pro quo bribery,Woodward contends, the undisclosed self-dealing theory was nevertheless presented to the jury. Woodward thus invokes the rule applied on direct appeal that "where a general verdict may rest on a ground that is invalid because the theory of conviction is contrary to law--as opposed to a ground that is invalid because the evidence supporting it is insufficient as a matter of law--the verdict must be set aside despite the existence of an alternate, legally valid ground of conviction." United States v. Richardson, 421 F.3d 17, 31 (1st Cir. 2005). Approached from any angle, according to Woodward, his conviction was based on fundamental errors that warrant relief.

II. CORAM NOBIS

The All Writs Act, 28 U.S.C. § 1651(a), empowers federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." One such writ, that of coram nobis, has recently received thorough attention from the First Circuit in an analysis of its history, purposes, and standards. See United States v. George, 676 F.3d 249(1st Cir. 2012).

Coram nobis is "a remedy of last resort for the correction of fundamental errors of fact or law." United States v. George, 676 F.3d 249, 253 (1st Cir. 2012) (citing Trenkler v. United States, 536 F.3d 85, 93 (1st Cir. 2008)). It is "ordinarily available only to a criminal defendant who is no longer incustody." Trenkler, 536 F.3d at 98. Woodward is no longer in custody.

The First Circuit has developed a tripartite test of eligibility for the writ:

a coram nobis petitioner must [1] explain his failure to seek earlier relief from the judgment, [2] show that he continues to suffer significant collateral consequences from the judgment, and [3] demonstrate that the judgment resulted from an error of the most fundamental character.

George, 676 F.3d at...