United States District Court, District of Columbia
A. HOWELL Chief Judge.
before the Court is the defendant's motion for
reconsideration, Def.'s Mot. Reconsideration Mem. Opinion
Def.'s Mot to Vacate, Set Aside, and Correct Sentence
Pursuant to 28 U.S.C. § 2255, or in the Alternative,
Petition for a Writ of Error Coram Nobis
(“Def.'s Mot. Reconsider”), ECF No. 180, of
the decision denying the defendant's motion to vacate his
convictions pursuant to 28 U.S.C. § 2255, or in the
alternative, the defendant's petition for a writ of error
coram nobis, see United States v. Verrusio
(“Verrusio I”), Crim. No. 09-00064 (BAH),
2017 WL 1437055, at *1 (D.D.C. Apr. 21, 2017). Specifically,
the defendant argues that this Court should reconsider its
ruling with respect to two issues: (1) its determination that
the defendant did not have standing to petition for a writ of
error coram nobis; and (2) that the defendant has
satisfied the “adverse consequences” prong of the
coram nobis test because the reversal of two of his
counts for receipt of an illegal gratuity would require
reversal of his third count for making a false statement on
his financial disclosure form. For the reasons set forth
below, the defendant's motion is denied.
background of this case has been fully summarized in prior
decisions in this case, see generally United States v.
Verrusio, 762 F.3d 1 (D.C. Cir. 2014); Verrusio
I, 2017 WL 1437055, at *1, and, thus, only those facts
necessary for resolving the instant motion are provided
2011, the defendant, a policy director for the Committee on
Transportation and Infrastructure of the U.S. House of
Representatives, Verrusio, 762 F.3d at 6, was
convicted by a jury on three separate counts: (1) conspiracy
to receive an illegal gratuity, in violation of 18 U.S.C.
§ 371; (2) receipt of an illegal gratuity, in violation
of 18 U.S.C. § 201(c); and (3) making a false statement,
in violation of 18 U.S.C. § 1001(a), Judgment at 1-2,
ECF No. 139. The charges stem from his acceptance of numerous
gifts from lobbyists associated with Jack Abramoff, including
an overnight trip to the 2003 World Series.
Verrusio, 762 F.3d at 6-7.
unsuccessfully appealing his convictions, the defendant
sought a writ of habeas corpus, pursuant to 28
U.S.C. § 2255, or in the alternative, a writ of error
coram nobis under 28 U.S.C. § 1651, to vacate
his convictions, primarily based on the contention that he
did not receive a gratuity in exchange for an “official
act.” The defendant argued that in McDonnell v.
United States, 136 S.Ct. 2355 (2016), the Supreme Court
narrowed the definition of what qualifies as an
“official act” under 18 U.S.C. § 201(a) such
that the defendant's conduct fell outside the ambit of
§ 201. Def.'s Mot. to Vacate, Set Aside, and Correct
Sentence Pursuant to 28 U.S.C. § 2255, or in the
Alternative, Petition for a Writ of Error Coram
Nobis (“Def.'s Mot.”) at 12-19, 29, ECF
Court first held that it lacked jurisdiction over the
defendant's petition for a writ of habeas corpus
because the defendant was no longer “in custody”
for the purposes of § 2255, a fact which the defendant
conceded. See Verrusio I, 2017 WL 1437055, at *7;
see Def.'s Mot. at 12 (conceding that the
defendant “is not currently subject to any restriction
that the current weight of authority views as meeting the
‘in custody' requirement of section
the defendant's alternative argument for a writ of
coram nobis, this Court noted that judges of this
Court have traditionally applied a four-pronged test to
determine whether coram nobis relief is warranted:
“(1) a more usual remedy is not available; (2) valid
reasons exist for not attacking the conviction earlier; (3)
adverse consequences exist from the conviction sufficient to
satisfy the case or controversy requirement of Article III;
and (4) the error is of the most fundamental
character.” United States v. Faison, 956
F.Supp.2d 267, 269 (D.D.C. 2013) (quoting United States
v. Hansen, 906 F.Supp. 688, 692-93 (D.D.C. 1995));
see also United States v. Lee, 84 F.Supp.3d 7, 9
(D.D.C. 2015); United States v. Harrison, No. 12-088
(ESH), 2015 WL 6406212, at *2 (D.D.C. Oct. 21, 2015);
Rossini v. United States, No. 08-692 (JMF), 2014 WL
5280531, at *1 (D.D.C. Oct. 14, 2014). The defendant argued
that he satisfied the third prong of this test because he was
suffering from several civil disabilities stemming from his
felony convictions. Specifically, the defendant noted that
Virginia, the state in which he resides, restricts his right
to gun ownership because he is a convicted felon,
see Def.'s Mot. at 27, other states
disenfranchise individuals with a criminal conviction,
id. at 28, and that he suffers from several other
civil disabilities, including the right to serve on a jury
and “what other countries [the defendant] can visit
because some countries restrict the travel of convicted
felons, ” id.
without deciding, that these civil disabilities were
“adverse consequences, ” this Court held that the
defendant still could not satisfy the third prong of the
coram nobis test “because the defendant cannot
show that a favorable decision would redress his alleged
injuries.” Verrusio I, 2017 WL 1437055, at *9.
the requirements of Article III, a petitioner must show (1)
an “actual or threatened injury, ” (2) that the
injury was caused or resulted from the conduct complained of,
and (3) “that the injury is likely to be redressed by a
favorable action.” Rossini, 2014 WL 5280531,
at *4; see also Lujan v. Defs. of Wildlife, 504 U.S.
555, 560-61 (1992) (explaining that “the irreducible
constitutional minimum of standing” includes
“injury in fact, ” “causation”, and
“redressability”). Accordingly, the defendant had
to show that granting a writ of error coram nobis
would “eliminate the claimed collateral consequence and
bring about the relief sought.” United States v.
George, 676 F.3d 249, 256 n.3 (1st Cir. 2012); see
also Fleming v. United States, 146 F.3d 88, 90 (2d Cir.
1998) (a coram nobis petitioner must show that she
“continues to suffer legal consequences from [her]
conviction that may be remedied by granting of the
writ” (quoting Foont v. United States, 93 F.3d
76, 79 (2d Cir. 1996))). Even if Counts I and II were
vacated, however, the defendant would still stand convicted
of Count III, a felony. Thus, a favorable decision vacating
Counts I and II would not “eliminate the claimed
consequence[s] and bring about the relief sought.”
George, 676 F.3d at 256 n.3. Accordingly, the
defendant's petition for a writ of error coram
nobis was dismissed.
59(e) of the Federal Rules of Civil Procedure permits a party
to file “[a] motion to alter or amend a judgment”
within “28 days after the entry of the judgment.”
Fed.R.Civ.P. 59(e). “[R]econsideration of a judgment
after its entry is an extraordinary remedy which should be
used sparingly, ” Mohammadi v. Islamic Republic of
Iran, 782 F.3d 9, 17 (D.C. Cir. 2015) (quoting 11 C.
Wright & A. Miller, Federal Practice & Procedure
§ 2810.1 (3d ed. 2012)), and “need not be granted
unless the district court finds that there is an intervening
change of controlling law, the availability of new evidence,
or the need to correct a clear error or prevent manifest
injustice.” Fox v. Am. Airlines, Inc., 389
F.3d 1291, 1296 (D.C. Cir. 2004) (quoting Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)); see
also Anyanwutaku v. Moore, 151 F.3d 1053, 1057 (D.C.
Cir. 1998) (“A Rule 59(e) motion ‘is
discretionary' and need not be granted unless the
district court finds that there is an ‘intervening
change of controlling law, the availability of new evidence,
or the need to correct clear error or prevent manifest
injustice.'”) (quoting Nat'l Trust v. U.S.
Dep't of State, 834 F.Supp. 453, 455 (D.D.C. 1993),
aff'd in part and rev'd in part on other grounds
sub nom. Sheridan Kalorama Historical Ass'n v.
Christopher, 49 F.3d 750 (D.C. Cir. 1995). Rule 59(e)
does not provide a vehicle “to relitigate old matters,
or to raise arguments or present evidence that could have
been raised prior to the entry of judgment.” Exxon
Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008)
(quoting 11 C. Wright & A. Miller, Federal Practice and
Procedure § 2810.1, pp. 127-28 (2d ed. 1995) (footnotes
omitted)). “Motions under Rule 59(e) are
‘disfavored' and the moving party bears the burden
of establishing ‘extraordinary circumstances'
warranting relief from final judgment.” Pinson v.
Dep't of Justice, Civ. No. 12-1872 (RC), 2017 WL
1148424, at *2 n.2 (D.D.C. Mar. 27, 2017) (quoting
Schoenman v. FBI, 857 F.Supp.2d 76, 80 (D.D.C. 2012)
(quoting Niedermeier v. Office of Baucus, 153
F.Supp.2d 23, 28 (D.D.C. 2001))). Additionally, with regard
to the “clear error” under Rule 59(e), courts
have imposed a “very exacting standard, ”
Bond v. U.S. Dep't of Justice, 286 F.R.D. 16, 22
(D.D.C. 2012), aff'd, No. 12-5296, 2013 WL
1187396 (D.C. Cir. Mar. 14, 2013) (quoting Lightfoot v.
District of Columbia, 355 F.Supp.2d 414, 422 (D.D.C.
2005); Hopwood v. Texas, 236 F.3d 256, 272 (5th Cir.
2000)). Put another way, “final judgment must be
‘dead wrong' to constitute clear error.”
Lardner v. FBI, 875 F.Supp.2d 49, 53 (D.D.C. 2012)
(quoting Parts & Elec. Motors, Inc. v. Sterling
Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988)).
“[I]t is clear that ‘manifest injustice' is
an exceptionally narrow concept in the context of a Rule
59(e) motion, ” Slate v. Am. Broad. Companies,
Inc., 12 F.Supp.3d 30, 35 (D.D.C. 2013), and, thus,
“must entail more than just a clear and certain
prejudice to the moving party, but also a result that is
fundamentally unfair in light of governing law, ”
id. at 35-36; cf. Associated Gen. Contractors of
Cal., Inc. v. Cal. State. Council of Carpenters, 459
U.S. 519, 536 (1983) (“[T]he judicial remedy cannot
encompass every conceivable harm that can be traced to
defendant raises two arguments in his motion for
reconsideration. First, the defendant argues that he has
standing to bring his petition for a writ of coram
nobis. Def.'s Mot. Reconsider at 8-9. Second, the
defendant charges that he has satisfied the “adverse
consequences” prong of the coram nobis test
because, assuming Counts I and II were invalidated, the