Bramblett outright rather than construing it flexibly: "Similarly unprincipled would be rejecting Bramblett's dictum that § 1001 applies to the courts, while adhering to Bramblett's holding that § 1001 applies to Congress." Hubbard, 514 U.S. 695, 131 L. Ed. 2d 779, 115 S. Ct. 1754 (Scalia, J., concurring in part and concurring in the judgment). Instead of so limiting Bramblett, the Court expressly overruled it because of its substantial flaws. The Court understood that overruling Bramblett would carry post-conviction ramifications for individuals such as the petitioner. 115 S. Ct. at 1765, 1766 (Scalia, J., concurring in part and concurring in the judgment) ("Some convictions obtained under Bramblett may have to be overturned, and in a few instances wrongdoers may go free who would have been prosecuted and convicted under a different statute if Bramblett had not been assumed to be the law. I count that a small price to pay for the uprooting of this weed."); id. at 1768 n. (Rehnquist, C.J., dissenting) (citing to Hansen, 249 U.S. App. D.C. 22, 772 F.2d 940 (D.C. Cir. 1985), which affirmed the petitioner's conviction).
Finally, the Court of Appeals for the District of Columbia has indicated that Hubbard "narrowed the reach of § 1001 to matters within the executive branch. " Dean, 55 F.3d at 658-59 (emphasis added). Although the Court of Appeals has recently suggested that the precise definition of "agency" is an open question in this Circuit, it has not adopted the narrow construction of Hubbard offered by the government: "the Supreme Court, in Hubbard v. United States has held that a false statement made to the Congress is not within the ambit of the statute prohibiting false statements to any department or agency of the United States.'" Rostenkowski, 313 U.S. App. D.C. 303, 59 F.3d 1291 (emphasis added) (citation omitted).
Consequently, the remaining question is whether a failure to apply Hubbard retroactively would result in an error of fundamental character. Drawing upon the rule established for federal habeas review in Davis v. United States, 417 U.S. 333, 346, 94 S. Ct. 2298, 2305, 41 L. Ed. 2d 109 (1974), the Court finds that Hubbard's, holding must be applied retroactively. See Laughlin, 474 F.2d at 451 (in the D.C. Circuit, habeas corpus standards generally apply to reviewing writs of error coram nobis); accord United States v. Walgren, 885 F.2d 1417, 1421 (9th Cir. 1989), cert. denied, 507 U.S. 921, 113 S. Ct. 1284, 122 L. Ed. 2d 677 (1993) ("no principled basis for distinction" between habeas corpus and coram nobis proceedings).
In Davis, the Supreme Court held that to determine whether a change in the substantive criminal law was to be applied retroactively, "the appropriate inquiry [is] whether the claimed error of law was a fundamental defect which inherently results in a complete miscarriage of justice.'" Davis, 417 U.S. at 346, 94 S. Ct. at 2305 (citation omitted). For Justice Stewart and a majority of the Davis Court, a conviction arising from acts that the law no longer made criminal left "no room for doubt," id., that the failure to apply the law retroactively would "inherently result in a complete miscarriage of justice." Id.
Applying the standards in Davis, the Courts of Appeals have retroactively applied the Supreme Court's decision in McNally v. United States, 483 U.S. 350, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987). Like Hubbard, the Supreme Court in McNally determined that conduct once construed as criminal was outside the scope of the applicable criminal statute, once that statute was properly interpreted. Prior to McNally, the federal courts had consistently interpreted the mall fraud statute, 18 U.S.C. § 1341, to allow for the conviction of government officials who had defrauded the public of their right to an honest government. McNally, 483 U.S. at 362-63 & nn. 1-2, 107 S. Ct. at 2882-83 & nn. 1-2 (Stevens, J., dissenting). However, in McNally, the Court upset that longstanding interpretation, limiting the scope of 18 U.S.C. § 1341 to the protection of property rights and placing the "intangible right" to good government beyond its reach. Id. at 360, 107 S. Ct. at 2881-82. After McNally, almost all of the federal courts faced with reviewing pre-McNally convictions of the mall fraud statute have applied its rule retroactively when considering writs of habeas corpus or writs of error coram nobis. See, e.g., United States v. McClelland, 941 F.2d 999, 1002 (9th Cir. 1991) (coram nobis review); United States v. Mitchell, 867 F.2d 1232, 1233 (9th Cir. 1989) (per curiam) (habeas corpus review); United States v. Osser, 864 F.2d 1056, 1059-60 (3rd Cir. 1989) (coram nobis review); United States v. Mandel, 862 F.2d 1067, 1074-75 (4th Cir. 1988), cert. denied, 491 U.S. 906, 105 L. Ed. 2d 699, 109 S. Ct. 3190 (1989) (same); United States v. Shelton, 848 F.2d 1485, 1489-90 (10th Cir. 1988) (habeas corpus review); Ingber v. Enzor, 841 F.2d 450, 455 (2nd Cir. 1988) (same). But see United States v. Callanan, 671 F. Supp. 487, 493 (E.D.Mich. 1987), rev'd in relevant part, 882 F.2d 229, 232 (6th Cir. 1989), cert. denied, 494 U.S. 1089, 110 S. Ct. 1816, 108 L. Ed. 2d 946 (1990) (holding McNally not to be retroactive in habeas corpus proceeding; reversed on appeal).
This Court holds that Hubbard should be applied retroactively; "full retroactivity [is] a necessary adjunct to a ruling that a trial court lacked authority to convict or punish a criminal defendant in the first place." United States v. Johnson, 457 U.S. 537, 550, 102 S. Ct. 2579, 2587, 73 L. Ed. 2d 202 (1982). Based on the Supreme Court's 1995 decision in Hubbard, the 1984 interpretation of the False Statements Act, 18 U.S.C. § 1001, upon which the petitioner's conviction was based, "is, and always was invalid." Strauss v. United States, 516 F.2d 980, 983 (7th Cir. 1975).
Although the Court will grant the petitioner's motion to set aside the sentence stemming from his 1984 conviction, it has no authority to provide the relief requested for his 1993 sentence, which stemmed from his 1992 conviction in Idaho. Under 28 U.S.C. § 2255, the petitioner must seek relief in the court in which the sentence was imposed. Additionally, this Court has limited authority to order the monetary relief requested. Ordering the return of a fine paid is, of course, permissible relief when considering a petition for a writ of error coram nobis. E.g., Keane, 852 F.2d at 204; DeCecco v. United States, 485 F.2d 372, 373 (1st Cir. 1973); Pasha v. United States, 484 F.2d 630, 631-33 (7th Cir. 1973); United States v. Lewis, 478 F.2d 835, 836 (5th Cir. 1973). However, since the authority of the Court to order such monetary relief is based upon the Tucker Act, 28 U.S.C. § 1346(a), see Keane, 852 F.2d at 204; Neely v. United States, 546 F.2d 1059, 1064 (3rd Cir. 1976); DeCecco, 485 F.2d at 373, the Court's authority is also subject to the Tucker Act's limitations. Keane, 852 F.2d at 204.
The petitioner has requested that the Court order the government to repay the $ 40,000 fine, with interest, that he paid as a result of his 1984 conviction. While the United States has to an extent waived its sovereign immunity under the Tucker Act, United States v. Bursey, 515 F.2d 1228, 1233 (5th Cir. 1975); Pasha, 484 F.2d at 633, its waiver does not include authorizing the federal courts to award interest. PPasha, 484 F.2d at 633; see Library of Congress v. Shaw, 478 U.S. 310, 314, 106 S. Ct. 2957, 2961, 92 L. Ed. 2d 250 (1986); Thompson v. Kennickell, 254 U.S. App. D.C. 348, 797 F.2d 1015, 1017 (D.C. Cir. 1986). The Court does, however, have jurisdiction under the Tucker Act to order repayment of the four $ 10,000 fines that petitioner paid even though the aggregate exceeds the $ 10,000 jurisdictional ceiling under 28 U.S.C. § 1346(a)(2). Baker v. United States, 722 F.2d 517, 518 (9th Cir. 1983); American Airlines v. Austin, 778 F. Supp. 72, 76 (D.D.C. 1991). See generally 14 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 2d § 3657, at 287 (1985). The repayment of the $ 40,000 will be ordered, but the request for interest will be denied.
For the reasons stated above, it is hereby
ORDERED that the petitioner's motion for relief under the federal habeas corpus statute, 28 U.S.C. § 2255 is denied; it is
FURTHER ORDERED that a writ of error coram nobis is granted in part and denied in part; it is
FURTHER ORDERED that the petitioner's 1984 conviction for violating 18 U.S.C. § 1001 is vacated; it is
FURTHER ORDERED that the petitioner's request to amend the 1993 sentence resulting from his 1992 conviction in the United States District Court for the District of Idaho is denied; it is
FURTHER ORDERED that the petitioner's request for repayment of the $ 40,000 fine resulting from his 1984 conviction on four counts of violating 18 U.S.C. § 1001 is granted; and it is
FURTHER ORDERED that the petitioner's request for interest is denied. IT IS SO ORDERED.
December 5, 1995
JOYCE HENS GREEN
United States District Judge