Daniele v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ANTHONY DANIELE, )

)

Petitioner, )

)

v. ) No. 4:22-CV-222 HEA

)

UNITED STATES OF AMERICA, )

)

Respondent. )

OPINION, MEMORANDUM AND ORDER

This matter is before the Court on Petitioner’s application for writ of coram nobis brought

pursuant to the All Writs Act, 28 U.S.C. § 1651. Petitioner filed his motion to overturn his

conviction on February 9, 2022. After reviewing the petition and the record before the Court, the

Court will summarily deny the petition pursuant to the abuse-of-the-writ doctrine.

Factual and Procedural Background

This action results from a criminal trial held in 1988, where

Petitioner was convicted of ten counts of mail fraud, one count of conspiracy and four

counts of extortion or attempted extortion. The prosecution arose from an investigation into the

management of the pension funds provided for disabled and retired members of the Fire and Police

Departments of the City of St. Louis and their survivors. Other defendants indicted with Petitioner

either pled guilty or were not prosecuted as a result of these plea agreements. See Police Retirement

System of St. Louis v. Midwest Investment Advisory Svc., Inc., 940 F.2d 351, 354-55 (8th Cir.

1991); United States v. Daniele, 886 F.2d 1046 (8th Cir. 1989). Ultimately, Petitioner was

sentenced to seven years of imprisonment. Id.

As recounted in numerous past proceedings in this Court and in the Eighth Circuit Court

of Appeals, the evidentiary record indicates that the scheme to defraud the pension funds began

in 1982. Donald Anton, one of Petitioner’s co-defendants, was a prominent and politically active

attorney who orchestrated the conspiracy to defraud the pension funds. United States v. Daniele,

886 F.2d 1046, 1048 (8th Cir. 1989); Anton v. United States, No. 4:94CV1877 GFG, at *3

(E.D.Mo. 1998); Anton v. Police Retirement System of St. Louis, 925 S.W.2d 900, 902

(Mo.Ct.App. 1996).

Anton conspired with pension fund officials and brokers to steer financial transactions to

certain individuals who would, in turn, make payoffs to Anton and the officials. Daniele, 886 F.2d

at 1049. Petitioner Daniele was a patrolman on the St. Louis Metropolitan Police force when, in

September 1984, he ran for election to the Board of Directors of the Police Pension Fund (“PPF”).

At trial, the government presented evidence that Petitioner was supported by Anton in this bid.

However, there appears to be some question regarding this supposition. Daniele, 886 F.2d at 1049

n.6. In April 1985, Petitioner became Chairman of the PPF. This move involved Anton’s support

as well as that of other political figures. The government produced evidence that Petitioner

indicated his desire for political assistance in being promoted to Sergeant. Evidence from Anton’s

appointment book showed that Petitioner met with Anton and others during a period when Anton

was pressuring PPF money managers to send all their brokerage business to Anton’s kickback

partners.

During this period, Anton was also lobbying to replace one management firm, Midwest

Advisory Management Services, (“Midwest”), with another, Investment Counselors, Inc. (“ICI”),

and Petitioner was, for a time, supportive of this move. An official from Midwest, Jim Bridges,

met with Petitioner to see whether he “had a preference for where the brokerage went.” Bridges

testified at trial that Petitioner replied “you know what the program is.” Bridges concluded that

Petitioner was supporting Anton’s pressure to use ICI, or Anton’s favorite brokerage houses.

Daniele, 886 F.2d at 1050. Petitioner successfully moved the PPF board to replace Midwest, and

hours before Midwest received formal notice of this, it made unusual and large transactions,

generating close to $100,000.00 in fees. Bridges, who had become a government informant,

testified that Petitioner approved these trades. Daniele, 886 F.2d at 1050, n.8. Petitioner later voted

to open the management contract to competitive bids. Problems with these arrangements and the

eleventh-hour trades lead the PPF Board to plan a lawsuit against Midwest, and petitioner reported

the firm to the Securities and Exchange Commission (“SEC”). Daniele, 886 F.2d at 1050-52 and

n.17. At this time, Petitioner also supported several fellow officers in their unsuccessful election

races for the PPF Board and another organization.

Anton offered campaign assistance, about which at least one officer was very suspicious.

Daniele, 886 F.2d at 1050. Petitioner then met with an official from one of the other management

firms hired by the PPF, Guaranty Trust Company (“Guaranty”), who had told his staff they might

“test the waters” to see if Guaranty would still be pressured to favor Anton’s brokers, I.M. Simon.

At the meeting, Petitioner purportedly warned the official not to “test the waters.” Since Anton

had a conspirator on the official’s staff, the government argued that this indicated Petitioner was

communicating with Anton and was acting to protect the scheme. Id. at 1051.

In February of 1986, Petitioner heard from other sources about complaints of improprieties

at Guaranty and reported them to a police commissioner, who was also on the PPF Board. Daniele,

886 F.2d at 1051. Petitioner shortly thereafter reported some of this information to federal

investigators. However, at that point and in the course of assisting in PPF’s own investigation,

Petitioner repeatedly denied that he knew Anton. Id. As federal investigators closed in on Anton,

he told a witness that he never made any payments to Petitioner, but only tried to help him get a

promotion. Id. at 1051-52. Anton said he believed Petitioner was well-qualified anyway. Record

evidence supported this. Id. at 1052, n. 15.

Although regarded as cooperative by police investigators, Petitioner continued to make

statements denying or minimizing his familiarity with Anton, in conflict with the numerous

meetings noted in Anton’s seized appointment calendar and testified to by a government witness.

Id.at 1052. The government conceded that it had no proof that Petitioner received money from the

kickback scheme. His intent, the government contended, was to receive political assistance in a

promotion. Petitioner contended that he did nothing for Anton but to support hiring a new

management firm, in cooperation with other board members. Id. at 1052, n.17.

At trial, on May 25, 1988, after opening statements, Anton elected to plead guilty to three

of the 24 counts against him; these were mail fraud conspiracy, extortion, and obstruction of

justice. As part of the plea agreement, the government agreed to drop all additional charges against

him and all charges against Anton’s wife. See Anton v. United States, No. 4:94CV1877 GFG at

*9, (E.D.Mo. 1998). The agreement would not go into effect, however, until sentencing, which

was set for August 5, 1988. The civil case was still pending. Anton refused to testify on the grounds

that he could incriminate himself. After a trial of at least two weeks, Petitioner was convicted. The

record reflects that while Petitioner’s attorney cross-examined witnesses, no defense witnesses

were called and no evidence was put forth by the defense. In an affidavit Petitioner attached to his

first petition for writ of error coram nobis filed in this Court, see Daniele v. U.S., 4:95CV1658

(E.D.Mo. 1998), Petitioner asserted that although Anton pled guilty early in their joint criminal

trial, Petitioner first understood that his defense counsel could question Anton to Petitioner’s

benefit. However, he later learned (during his trial) that Anton had invoked his privilege against

self-incrimination and Petitioner understood Anton therefore could not be compelled to testify.

Petitioner was convicted of 15 counts and acquitted of six.

Extensive litigation followed Petitioner’s conviction. Petitioner appealed his conviction on

a number of grounds. While the Eighth Circuit upheld the conviction, it found that evidentiary

errors and some other problems had occurred. First, Petitioner was not allowed to introduce an

inconsistent statement made by a government witness, the official from Midwest, which apparently

indicated that Petitioner had not approved the eleventh-hour trades. Nonetheless, since Petitioner

was allowed to cross-examine this witness, the error was ruled harmless. See Daniele, 886 F.2d at

1052-53. The Court specifically noted, however, that it was not expressing a view on how new

evidence against Midwest (obtained in the civil trial) would affect Petitioner’s motion for a new

criminal trial. Id. at 1053, n.19. The Eighth Circuit held that this error was central to the liability

of Midwest (the key issue in the civil trial), but that it was “not so central to the issue of Petitioner’s

knowledge or intent that it is likely the judgment [of the jury] was substantially affected by it.” Id.

at 1057.

Second, Petitioner had not been allowed to introduce a videotape of one of the PPF Board

meetings which, he believed would demonstrate that all of the board members initially agreed to

hire ICI, the firm touted by Anton. Again, the Court found this was indeed admissible, but was

not reversible error, for four reasons: it could have been excluded as cumulative; the minutes of

that meeting were admitted; a board member was available for cross-examination; and Petitioner’s

counsel had failed to offer the trial court an evidentiary basis for overcoming the government’s

hearsay objection, stating “I don’t know that I do [have a response].” Id. at 1053-54. On appeal,

Petitioner argued, and the Court of Appeals agreed, that the basis should have been Fed.R.Evid.

803(24). Id.

Third, the official from Guaranty testified that he saw Petitioner over a Fourth of July

holiday, and stated that his (the witness’s) date commented on the large bankroll of cash

Petitioner was holding. This testimony was hearsay and “unquestionably prejudicial.” Id. at

1056. Although it should not have been allowed, the trial court instructed the jury to disregard it,

and the Court of Appeals found no reversible error. Id.

Petitioner pointed out that his six other co-defendants began to plead guilty during the

jury selection process and by the time the first witness was called, only Petitioner remained to be

tried. Petitioner argued on appeal that this timing was prejudicial, largely because the government

was allowed “to highlight evidence in its opening statement without having to connect that

evidence to Daniele.” Id. at 1055. The Court of Appeals ruled that the trial court’s refusal to grant

a mistrial was not an abuse of discretion. Id.

Finally, Petitioner argued that he was prejudiced because the trial court agreed to allow

the government to question him (subject to timely and relevant objections) on another matter if

he took the stand to testify in his own defense; and, although defense counsel told the jury in his

opening statement that Petitioner would indeed so testify, this ruling foreclosed that option.

Specifically, Petitioner was worried that prosecutors would cross-examine him about a 1986 IRS

investigation of his alleged outside income. He had cooperated with federal investigators and had

been assured that nothing he said would be used against him, “either directly or indirectly.”

Id. at 1054. He was never charged with any offense related to the investigation. Id. While such

cross-examination would generally have been prohibited under Fed.R.Evid.404(b), and possible

Rule 402, the government argued that it related to Petitioner’s truthfulness and might have been

admissible under Rule 608(b). The Court of Appeals held that it was within the trial court’s

discretion to determine these questions as they came up, rather than entirely prohibit them at the

outset. Id.

Ultimately, Petitioner argued that he was never actually involved in the racket his

codefendants pled guilty to, and that he had no knowledge of the conspiracy or specific intent to

defraud. The Eighth Circuit observed:

There is evidence which supports defendant’s position. There is no evidence

defendant received any money from anyone as a result of the scheme, which

started long before he became a member of the Police Pension Board. There is

evidence that defendant ran for the Board on a platform which disparaged the

money managers involved in the scheme based on their poor performance and

high commissions, and that his actions on the Board were consistent with the

actions of other Board members who were also concerned about the managers’

performance. Defendant supported the investigation of Midwest and reported

them to the SEC, actions which were arguably against the interests of those

involved in directing brokerage through Midwest. Defendant also appeared to

have been responsible for bringing the allegations of Harry Barr to the attention of

Commissioner Frank, and cooperated with Frank in investigating the allegations

made by Barr against Guaranty Trust.

Viewing the evidence in light most favorable to the jury’s verdict, however, there

is also evidence from which a jury could conclude that Daniele had knowledge of

the scheme, acted as Anton’s “spy in the camp,” and directed brokerage himself.

[Here the court notes again that new evidence from the civil trial is not

considered.] Daniele lied about his knowledge of and relationship with Anton, he

provided Anton with secret information about the Board’s actions, he told Bridges

of Midwest “you know what the program is,” and he told Finch of Guaranty Trust

not to “test the waters.” Anton’s records show numerous meetings with Daniele

and his tape-recorded statements implicate Daniele directly. These co-conspirator

statements were properly admitted by the district court. See Bourjaily v. United

States, 483 U.S. 171, 176 (1987); United States v. Townsley, 843 F.2d 1070, 1084

(8th Cir. ), reh’g en banc on other grounds, 856 F.2d 1189 (8th Cir. 1988). While

the evidence against the defendant was by no means overwhelming, there

is substantial evidence from which a jury could reasonably infer he was guilty of

the crimes charged beyond a reasonable doubt. See United States v. Karunatileka,

820 F.2d 961, 965 (8th Cir. 1987); United States v. McCrady, 774 F.2d 868, 874-

075 (8th Cir. 1985); United States v. Lemm, 680 F.2d 1193, 1205 (8th Cir. 1982).

U.S. v. Daniele, 866 F.2d at 1056-57.

The Court of Appeals concluded by urging the district court to “consider carefully any

motion for reduction of sentence” from Petitioner. Id. at 1057.

On a motion for new trial, which was denied, the district court reduced Petitioner’s eight-

year sentence by one year. United States v. Daniele, 931 F.2d 486, 488 (8th Cir. 1991). On

appeal from the reduction of the sentence, the Eighth Circuit noted that Petitioner argued, “perhaps

with good reason,” that his circumstances warranted a greater reduction.” However, the court

reasoned, in part, that since Petitioner had, while on bond, “[taken] hostage a trial witness at

gunpoint,” the mere one-year reduction was not inappropriate. Id. at 489.

Petitioner’s motion for new trial was based in large part on the outcome of the civil action

against him, Police Retirement System v. Midwest Inv. Advisory Servs., 706 F.Supp. 708 (E.D.Mo.

1989), aff’d, 940 F.2d 351 (8th Cir. 1991). Petitioner was exonerated in that trial from charges of

breaching his fiduciary duty to the pension fund. Daniele, 931 F.2d at 488. However, his arguments

that the information developed in that trial constituted “newly discovered evidence” entitling him

to a new criminal trial were unavailing. Id. at 489.

The Court of Appeals discussed at length the grounds for relief which involved the remarks

of petitioner’s co-defendant Anton at the close of the civil trial. In his closing argument, Anton,

representing himself, said the following:

Over there sits Tony Danielle [sic]. He is in this case, in Count 14. I am not in

that count. I am in Counts 16 and 20, which are the counts making allegations

concerning me. This is the first time anywhere that anyone officially has

publically [sic] acknowledged that Tony Danielle [sic] and I did not conspire to

do anything. I had no participation in this election as a trustee. You heard that

before. There was no agreement that he hire nor fire Guaranty Trust Company, nor

Midwest Investment. There was no agreement between Tony and I that he

use only I.M. [sic] Simon as a broker. I agreed to circulate his resume for

promotion, since I sincerely believed that he had an excellent police record, and

deserved to be promoted. And I gave it to anyone that I thought would listen.

Unfortunately, he was not promoted. Neither he, nor I had any promises or

agreements that I would give him any money for doing anything, or he would

give me any money for doing anything. In my opinion, he should not be liable in

this case; and he should not even have been sued in this case.

Daniele, 931 F.2d at 488.

The Court of Appeals agreed with the District Court that these remarks, made in closing

argument where Anton represented himself, did not constitute evidence; thus, they were not

“newly discovered evidence” for the purposes of a new trial. Id. at 489.

The Court reasoned that the remarks were “purely legal arguments” and not testimony.

The Court relied partly on the fact that Anton refused to testify at trial, invoking his right under

the Fifth Amendment. “[We] think it highly improbable that Anton, who heretofore steadfastly

refused to make any statement, would have chosen to testify sua sponte during closing arguments.”

Id. The Court further noted this about Anton’s refusal to testify: “We remain unclear why Daniele

failed to challenge Anton’s invocation of the privilege against self-incrimination during closing

arguments.” Id.

The Court further noted this about Anton’s refusal to testify: “We remain unclear why

Daniele failed to challenge Anton’s invocation of the privilege against self-incrimination during

both the criminal and civil proceedings. Anton’s guilty plea, which predated both trials, may have

waived this right - - at least as to matters that the guilty plea resolved.” Id. at 488 n.2.

Finally the Eighth Circuit rejected the argument that the civil verdict for Petitioner

vindicated his efforts for a new criminal trial.

We acknowledge the civil verdict in Daniele’s favor, but cannot accord it much

significance because Daniele’s new trial motion failed to specify the civil charges

against him, their elements, or the instructions and verdict form given to the civil

jury. Without such information, we cannot begin to ascertain whether evidentiary

variations between the two trials seemingly caused the different verdicts.

Id. at 489.

Petitioner’s 1995 Coram Nobis Proceeding

As noted above, Petitioner brought a prior application for writ of error coram nobis in this

Court, on September 1, 1995. Daniele v. U.S., 4:95CV1658 CEJ (E.D.Mo. 1998). In his 1995

application for writ of error coram nobis, Petitioner essentially advanced two grounds for relief.

First, he argued that juror misconduct fatally prejudiced his right to a fair trial. Second, he argued

that he was wrongfully denied the opportunity to compel Anton’s putative exculpatory testimony.

Petitioner additionally argued that his attorney rendered constitutionally ineffective assistance.

After a full briefing by Petitioner and the Government, the Court reviewed Petitioner’s

claims and found both claims to be without merit. The petition for writ of error coram nobis

was denied on December 3, 1998. The denial of the petition for writ was affirmed by the Eighth

Circuit Court of Appeals on October 18, 1999. See Daniele v. United States, No. 98-4138 (8th Cir.

1999).

Petitioner’s 2014 Coram Nobis Proceeding

Petitioner filed a second petition for writ of coram nobis on December 23, 2014. Daniele

v. United States, No. 4:14-CV-2100 HEA (E.D.Mo). In his application for coram nobis, petitioner

claimed that “although [petitioner has] extensively litigated his conviction, the pieces of the puzzle

leading to his wrongful conviction have never been completely assembled to give this Court a true

picture of his innocence.” Those puzzle pieces, Petitioner contends, include: (1) the exclusion of

Louis Bliele’s testimony that Bridges knew his firm had been terminated the night before he was

officially notified, in conflict with his trial testimony; (2) the exclusion of the videotape of the

Board meeting, which showed that Petitioner voted for competitive bidding; (3) Anton’s

statements in his closing argument in the civil trial, in which he stated that Petitioner was innocent;

and (4) the testimony of two experts at the civil trial who testified that Petitioner’s actions were

inconsistent behavior for someone who wanted to benefit from fraud. The Court denied and

dismissed Petitioner’s application based on the abuse-of-the writ doctrine on March 27, 2019. Id.

The Eighth Circuit Court of Appeals summarily affirmed this Court’s judgment on January 21,

2020. Daniele v. United States, No. 19-2953 (8th Cir. 2020).

Despite the summary affirmance of the Court of Appeals, petitioner filed three new

applications for writ of coram nobis in the 2014 action on June 15, 2020, July 23, 2020 and August

13, 2020. See Daniele v. United States, No. 4:14-CV-2100 HEA (E.D.Mo) (Docket Nos. 43, 44

and 47). Petitioner asserted that he would “continue over and over again” to submit petitions for

coram nobis. He once again raised the same, or similar arguments to those made in his prior

applications for writ of coram nobis. On August 17, 2020, the Court denied petitioner’s

applications for writ pursuant to the abuse-of-the-writ doctrine. Daniele v. United States, No. 4:14-

CV-2100 HEA (E.D.Mo) (Docket No. 48). The Eighth Circuit summarily affirmed the judgment

of the District Court on December 7, 2020. Daniele v. United States, No. 20-2977 (8th Cir. 2020).

Petitioner’s Claims in this Action

In the present action, Petitioner asserts that he is entitled to either reversal of the charges

in his criminal action, or a new trial. Petitioner also requests the ability to testify before the grand

jury. Petitioner states that his “innocence is the only thing [he] needs addressed.” He seeks to have

all charges dismissed against him.

Discussion

The instant action is Petitioner’s sixth request for writ of coram nobis in this Court. As this

Court has discussed previously, “[a] writ of coram nobis is an ‘extraordinary remedy,’ and courts

should grant the writ ‘only under circumstances compelling such action to achieve justice’ and to

correct errors ‘of the most fundamental character.’” United States v. Camacho–Bordes, 94 F.3d

1168, 1173 (8th Cir. 1996) (quoting United States v. Morgan, 346 U.S. 502, 511–12 (1954)).

“Accordingly, a petitioner must show a compelling basis before coram nobis relief will be

granted...and the movant must articulate the fundamental errors and compelling circumstances for

relief in the application for coram nobis.” Id. (quotations and citations omitted); see also Morgan,

346 U.S. at 511 (“Continuation of litigation after final judgment and exhaustion or waiver of any

statutory right of review should be allowed through this extraordinary remedy only under

circumstances compelling such action to achieve justice.”).

A petitioner must also provide sound reasons for his failure to seek appropriate earlier

relief. See Morgan, 346 U.S. at 512; McFadden v. United States, 439 F.2d 285, 287 (8th Cir. 1971).

A writ of error coram nobis cannot be used to relitigate issues already reviewed during prior post-

conviction proceedings. See Willis v. United States, 654 F.2d 23, 24 (8th Cir. 1981) (per curiam)

(absent credible new evidence or subsequent change in law, coram nobis petitioner is not entitled

to another review of issues previously litigated and fully explored in § 2255 proceedings).

The abuse-of-the-writ doctrine applies to claims not raised in prior writ applications, such

as those brought in this petition. “[I]n general[, abuse-of-the-writ] prohibits subsequent habeas

consideration of claims not raised, and thus defaulted, in the first federal habeas proceeding.”

McCleskey v. Zant, 499 U.S. 467, 490 (1991). The doctrine “concentrate[s] on a petitioner's acts

to determine whether he has a legitimate excuse for failing to raise a claim at the appropriate time.”

Id. The abuse-of-the-writ doctrine applies to coram nobis cases. See United States v. Camacho-

Bordes, 94 F.3d 1168, 1172-73 (8th Cir. 1996).

The Court has previously denied five applications for writ of coram nobis brought by

Petitioner. The Eighth Circuit Court of Appeals has summarily affirmed each of the denials.

Petitioner cannot now continue to file the same motions over and over and over and over. No

further action will be taken by the Court in this regard. Although Petitioner claims he will continue

to file the same motion until he gets relief, Petitioner will not be allowed to thwart this Court’s

authority and is cautioned that failure to adhere to this Court’s Orders may give rise to a finding

of contempt. This case is closed; there remains nothing to address. Petitioner shall not file

additional motions for the same relief that has been denied.

Accordingly,

IT IS HEREBY ORDERED that Petitioner’s application for writ of coram nobis is

DENIED.

IT IS FURTHER ORDERED that this case is DISMISSED pursuant to the abuse-of-the-

writ doctrine.

IT IS FURTHER ORDERED that no certificate of appealability shall be granted.

An Order of Dismissal will accompany this Memorandum and Order.

Dated this 18" day of March, 2022.

UNITED STATES DISTRICT JUDGE

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