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United States v. Verrusio

United States District Court, District of Columbia

June 19, 2017

UNITED STATES OF AMERICA,
v.
FRASER VERRUSIO, Defendant.

          MEMORANDUM OPINION

          BERYL A. HOWELL Chief Judge.

         Pending 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.

         I. BACKGROUND

         The 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 below.

         In 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.

         After 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 No. 162.

         This 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 2255(a)”).

         Addressing 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.

         Assuming, 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.

         To meet 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.

         II. LEGAL STANDARD

         Rule 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 alleged wrongdoing.”).

         III. DISCUSSION

         The 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 ‚Äúprejudicial ...


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