# United States v. John C. Mandanici, Jr.

> Court of Appeals for the Second Circuit · February 23, 2000 · 205 F.3d 519

URL: https://www.frixlaw.com/law-library/cases/9492845

## Case

- **Full name:** UNITED STATES of America, Respondent-Appellee, v. John C. MANDANICI, Jr., Petitioner-Appellant
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** February 23, 2000
- **Citations:** 205 F.3d 519; 2000 U.S. App. LEXIS 2599
- **Precedential status:** Published
- **Opinion:** Concurrence by Kearse
- **Judges:** Oakes, Kearse, Cabranes
- **Cited by:** 155 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9492845

## How later opinions describe it (automated extraction)

- holding that the shift from preponderance-of-the-evidence to beyond-a-reasonable-doubt on the "materiality" issue in perjury prosecutions, which was required by Gaudin and United States v. Ali, 68 F.3d 1468, 1474-75 (2d Cir.1995), modified, 86 F.3d 275 (2d Cir.1996), is a proc…
- explaining that a watershed rule must institute “a ‘sweeping’ change that applies to a large swathe of cases rather than a ‘narrow right’ that applies only to a ‘limited class’ of cases” (quoting O’Dell, 521 U.S. at 167, 117 S.Ct. 1969)
- explaining that a watershed rule must institute “a sweeping change that applies to a large swathe of cases rather than a narrow right that applies only to a limited class of cases” (internal quotation marks omitted)
- noting that “[beginning with the rule at issue in Teague, the Court has measured at least eleven new rules, or proposed new rules, of criminal procedure against the criteria for the second exception and, in every case, has refused to apply the rule at issue retroactively”

## Opinion text

KEARSE, Circuit Judge,
concurring:
I concur in the majority opinion and the judgment. I write separately to state my view that even absent Teague considerations, coram nobis relief would be inappropriate in this case.
*532 An important difference between habeas relief and coram nobis lies in the fact that, because the latter comes after the petitioner has completed his sentence, the petitioner will not be retried; thus, the granting of coram nobis normally results in the expungement of the conviction, with no possibility of further proceedings to determine whether the petitioner was guilty of the offense charged. Accordingly, it has long been held that in order to obtain coram nobis relief a petitioner must show an error that “compelfs] ... action to achieve justice.” United States v. Morgan, 346 U.S. 502, 511 , 74 S.Ct. 247 , 98 L.Ed. 248 (1954); see, e.g., Fleming v. United States, 146 F.3d 88, 90 (2nd Cir.1998); Foont v. United States, 93 F.3d 76, 79 (2nd Cir.1996); Nicks v. United States, 955 F.2d 161, 167 (2nd Cir.1992).
In the present case, the error is that an element of the offense was found established by a preponderance of the evidence, rather than beyond a reasonable doubt. A preponderance means more likely than not. The element was the materiality of false statements made by petitioner Man-danici in connection with obtaining payment for services on a federally funded construction contract. There is not contention in this petition that the evidence was not sufficient to establish materiality by a preponderance. (And the reason may be found in our opinion affirming on the two counts of conviction at issue here. See United States v. Mandanici, 729 F.2d 914, 920 (2nd Cir.1984)(noting that the record showed not only that Mandanici has represented that the construction project was completed though it was not, but also that he had “submitted false documentation of his purported expenditures with respect to nearly every task detailed in” the contract’s work specification); id. at 921 (noting that there was “ample proof’ to permit a jury to find “that Mandanici had no intention of ever completing the agreed-upon work”).)
Nor is there any suggestion here that a standard below that of preponderance was used. Thus, the consequences of granting a writ of coram nobis in this case would be to expunge, without possibility of reinstatement, the conviction of a person who more likely than not committed the offenses of which he stands convicted. In my view, the granting of coram nobis in such a circumstance would not properly be characterized as necessary to “achieve justice.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9492845. Public record. Not legal advice.