Opposition Brief — William Stenger, Petitioner v. United States

No. 24-957

In the Supreme Court of the United States

WILLIAM STENGER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

D. JOHN SAUER

Solicitor General

Counsel of Record

MATTHEW R. GALEOTTI

PAUL T. CRANE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals erred in assuming

without deciding it had jurisdiction to review the denial

of petitioner’s petition for a writ of coram nobis on the

merits.

2. Whether a federal court has jurisdiction to modify

a criminal restitution order by writ of coram nobis.

(I)

RELATED PROCEEDINGS

United States District Court (D. Vt.):

United States v. Stenger, No. 19-cr-76 (Apr. 15, 2022)

(criminal judgment)

United States v. Stenger, No. 19-cr-76 (May 15, 2023)

(denying petition for a writ of coram nobis)

United States Court of Appeals (2d Cir.):

United States v. Stenger, No. 23-6528 (June 28, 2024)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 6

Conclusion ................................................................................... 12

TABLE OF AUTHORITIES

Cases:

Campbell v. United States, 330 Fed. Appx. 482

(5th Cir. 2009)...................................................................... 12

Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................ 11

Food Mktg. Inst. v. Argus Leader Media,

588 U.S. 427 (2019)................................................................ 7

Hoffman v. Nordic Naturals, Inc.,

582 U.S. 931 (2017).............................................................. 10

Liu v. SEC, 591 U.S. 71 (2020) ............................................... 2

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............ 8

The Monrosa v. Carbon Black Exp., Inc.,

359 U.S. 180 (1959).............................................................. 10

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ........................................................... 9, 10

Supervisors v. Stanley, 105 U.S. 305 (1882) ................. 10, 11

Syngenta Crop Prot., Inc. v. Henson,

537 U.S. 28 (2002) ............................................................... 11

Tenet v. Doe, 544 U.S. 1 (2005) ............................................. 10

United States v. Calderon, 944 F.3d 72

(2d Cir. 2019), cert. denied, 141 S. Ct. 953,

and 141 S. Ct. 954 (2020) ...................................................... 4

United States v. Denedo, 556 U.S. 904 (2009)....................... 8

United States v. Mayer, 235 U.S. 55 (1914) .......................... 8

United States v. Mischler, 787 F.2d 240 (1986) .................. 12

(III)

IV

Cases—Continued:

Page

United States v. Morgan, 346 U.S. 502 (1954)...................... 8

United States v. Stefanoff, 149 F.3d 1192,

1998 WL 327888 (10th Cir. 1998) ...................................... 12

Vitol S.A. v. Autoridad de Energia Electrica de

Puerto Rico, 584 U.S. 1013 (2018) ..................................... 10

Waleski v. Montgomery, McCracken, Walker &

Rhoads, LLP (In re Tronox Inc.):

No. 20-3949, 2022 WL 16753119 (2d Cir. Nov. 8,

2022), cert. denied, 143 S. Ct. 2027 (2023) ............... 10

143 S. Ct. 2027 (2023) .................................................. 9, 10

West Virginia v. EPA, 597 U.S. 697 (2022) ...................... 6, 7

Constitution and statutes:

U.S. Const. Art. III .............................................................. 6-9

All Writs Act, 28 U.S.C. 1651 ................................................. 5

28 U.S.C. 1651(a) ............................................................. 11

18 U.S.C. 1001 ...................................................................... 2, 4

In the Supreme Court of the United States

No. 24-957

WILLIAM STENGER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-11a)

is available at 2024 WL 3220260. The order of the district court (Pet. App. 14a-23a) is available at 2023 WL

12019411.

JURISDICTION

The judgment of the court of appeals was entered on

June 28, 2024. A petition for rehearing was denied on

September 27, 2024 (Pet. App. 12a-13a). On December

18, 2024, Justice Sotomayor extended the time within

which to file a petition for a writ of certiorari to and including February 24, 2025, and the petition was filed on

that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a guilty plea in the United States District

Court for the District of Vermont, petitioner was con(1)

2

victed on one count of making a false statement, in violation of 18 U.S.C. 1001. C.A. App. 429. He was sentenced to 18 months of imprisonment, to be followed by

three years of supervised release, and was ordered to

pay $250,000 in restitution. Id. at 430-431, 434-435, 438.

Petitioner did not appeal, but about a year later, he filed

a petition for a writ of coram nobis seeking to vacate

the restitution order. Pet. App. 4a. The district court

denied the petition. Id. at 14a-23a. The court of appeals

affirmed. Id. at 1a-11a.

1. Under the EB-5 Immigrant Investor Program,

foreigners can apply to become lawful permanent residents of the United States by investing in commercial

enterprises approved by U.S. Citizenship and Immigration Services (USCIS) and, for investments made in

Vermont, by the Vermont EB-5 Regional Center (VRC).

See Liu v. SEC, 591 U.S. 71, 77 (2020); Gov’t C.A. Br. 4.

Petitioner and his codefendants managed the Jay Peak

Biomedical Research Park EB-5 investment project,

also known as the AnC Vermont project. Presentence

Investigation Report (PSR) ¶¶ 12-16. The AnC Vermont

project was to be funded by EB-5 investors and involve

the construction and operation of a biotechnology facility in Newport, Vermont. Pet. App. 3a.

An EB-5 investor must demonstrate that his investment has created, or will create, ten jobs within a few

years. Gov’t C.A. Br. 4. Accordingly, petitioner’s “primary objective was to convince [prospective EB-5] investors, the VRC, and ultimately USCIS, that the project would soon create the requisite number of jobs.”

PSR ¶ 20. To do so, petitioner obtained a jobs forecast

based on inflated financial projections and used it to

promote the AnC Vermont project to investors, regulators, politicians, and the public. Ibid.; Gov’t C.A. Br. 7-8.

3

By June 2014, the VRC was concerned about multiple aspects of the AnC Vermont project, including the

lack of support for financial projections and the lack of

information about requisite approvals from the Food

and Drug Administration (FDA). Gov’t C.A. Br. 9. The

VRC ordered petitioner to suspend offering and marketing the AnC Vermont project until various questions

were answered and the VRC had approved revised offering materials. Id. at 9-10; PSR ¶ 80.

In an effort to convince state regulators to let him

resume marketing the AnC Vermont project, petitioner

made a number of submissions. As most relevant here,

in January 2015, he submitted various materials to the

VRC, including a letter from a consulting firm stating

that the AnC Vermont business projections were reasonable, and a timeline regarding commercialization of

the project’s biomedical products. Gov’t C.A. Br. 10.

Those submissions were false. Among other things, petitioner knew that the consulting firm had not analyzed

the relevant projections and that the timeline did not

include or reasonably account for the need to consult

with FDA and obtain FDA approval. Ibid.; PSR ¶¶ 82-83.

In April 2015, state regulators permitted petitioner

to resume marketing the AnC Vermont project. Gov’t

C.A. Br. 10. Petitioner continued fundraising until the

Securities and Exchange Commission (SEC) filed a civil

complaint in 2016 and successfully petitioned a court to

appoint a receiver for the AnC Vermont Project. Id. at

4-5, 7-8. All told, petitioner raised about $85 million in

capital investments, plus $8 million in administrative

fees, from 169 different investors. Id. at 4-5. The AnC

Vermont facility was never constructed.

2. A federal grand jury sitting in the District of Vermont returned a 14-count indictment against petitioner

4

and his three codefendants. Indictment 1-31. Petitioner

pleaded guilty to one count of making false statements,

in violation of 18 U.S.C. 1001, in connection with his January 2015 submissions to the VRC. Pet. App. 3a.

At sentencing, the government requested that petitioner be ordered to pay restitution to the 36 investors

who made investments in the AnC Vermont project after petitioner’s January 2015 fraudulent submissions to

the VRC. Pet. App. 16a. Because those investors had

already been refunded their principal, the government

sought restitution only for the administrative fees that

had not yet been repaid. Ibid. It was undisputed that

that amount totaled $1,664,928. Ibid.

Petitioner objected to paying any restitution, however, on the theory that the sole proximate cause of the

investors’ losses was the Vermont regulators’ decision

in April 2015 to lift the marketing hold and allow petitioner to resume marketing the AnC Vermont project to

investors. Pet. App. 17a. The district court, after briefing and an evidentiary hearing, rejected that contention. Id. at 18a. Although the court “accepted for purposes of argument” petitioner’s submission that “ ‘there

were sufficient . . . red flags and warning signs that the

regulatory agency and the State should not have allowed the investment to be marketed again in April of

2015,’ ” the court found that his false statements were a

proximate cause of the investors’ losses, even if not the

sole cause. Ibid. (citation omitted); see United States v.

Calderon, 944 F.3d 72, 95 (2d Cir. 2019), cert. denied,

141 S. Ct. 953, and 141 S. Ct. 954 (2020). Among other

things, the court noted that petitioner’s own witness at

the evidentiary hearing, former state regulator Susan

Donegan, “testified that [petitioner’s] statement to her

about future job creation—the false statement alleged

5

in [the count of conviction]—was material to her decision to release the hold on the AnC Bio investment.”

Pet. App. 17a.

The district court reduced the restitution amount

from about $1.7 million to $250,000 in light of petitioner’s limited work capacity and health restrictions.

Pet. App. 18a. The court also sentenced petitioner to 18

months of imprisonment, to be followed by three years

of supervised release. C.A. App. 430-431. Petitioner did

not appeal. Pet. App. 4a, 9a-10a.

3. About a year later, shortly after leaving prison,

petitioner filed a petition for a writ of coram nobis pursuant to the All Writs Act, 28 U.S.C. 1651. Gov’t C.A.

Br. 14. Petitioner sought to vacate the restitution order

and renewed his argument that his false submissions in

January 2015 were not a proximate cause of the investors’ losses. Pet. App. 4a. He cited two internal memoranda authored by a state regulator in February 2015

“describ[ing] calls between [state] and SEC employees

regarding suspicions of fraud surrounding EB-5 projects in Vermont, including the AnC project.” Id. at 5a;

see id. at 4a.

The district court denied the petition. Pet. App. 14a23a. It explained that coram nobis “permits the correction of fundamental errors in a criminal judgment when

appeal or collateral review through 28 U.S.C. § 2255 are

not available,” but only if the petitioner shows that “extraordinary circumstances are present compelling such

action to correct a fundamental error” and “[s]ound reasons exist[] for failure to seek appropriate earlier relief.” Id. at 19a-20a. The court concluded that petitioner

satisfied neither requirement. It observed that he was

seeking to relitigate the same theory he unsuccessfully

pursued at his sentencing, namely that his false state-

6

ments were not a proximate cause of the investors’

losses. Id. at 20a-21a. And the court noted that petitioner’s “late discovery” of the two internal memos did

not “excuse [him] from raising the issue previously,”

given that the government had provided those documents to the defense “on three separate occasions” beginning more than two years before petitioner’s sentencing. Id. at 21a; see id. at 4a-5a.

4. The court of appeals affirmed by summary order.

Pet. App. 1a-11a. It “assume[d], without deciding, that

a writ of coram nobis is available to challenge a noncustodial component of a sentence, including a restitution

order.” Id. at 7a n.2. Declining petitioner’s request to

decide the jurisdictional issue, the court cited circuit

precedent holding that “where the jurisdictional issue is

statutory in nature—as it is here, under the All Writs

Act—we may assume hypothetical jurisdiction and address the substance of claims that are plainly without

merit.” Ibid. On the merits, the court rejected petitioner’s coram nobis claim for essentially the same reasons cited by the district court. See id. at 7a-10a.

ARGUMENT

Petitioner contends (Pet. 16-20) that the court of appeals erred by assuming without deciding it had jurisdiction over his coram nobis challenge to the restitution

order, but further contends (Pet. 20-22) that the court’s

assumption was in fact correct. This Court lacks jurisdiction to review those abstract claims, and they would

not warrant further review in any event.

1. Petitioner lacks Article III standing to seek this

Court’s review of the questions presented.

a. “The requirement of standing ‘must be met by

persons seeking appellate review, just as it must be met

by persons appearing in courts of first instance.’ ” West

7

Virginia v. EPA, 597 U.S. 697, 718 (2022) (citation omitted). “In considering a litigant’s standing to appeal, the

question is whether it has experienced an injury ‘fairly

traceable to the judgment below’ ” and whether “a ‘favorable ruling’ from the appellate court ‘would redress

that injury.’ ” Ibid. (brackets, citations, and emphasis

omitted).

Petitioner cannot satisfy either requirement. First,

he sustained no injury from the only aspect of the judgment below that he challenges in this Court: the court

of appeals’ exercise of “hypothetical jurisdiction” over

his coram nobis claim. Pet. App. 7a n.2. After all, petitioner himself invoked the lower courts’ jurisdiction to

review that claim on the merits, and he believes that the

court of appeals’ jurisdictional hypothesis was correct.

In these circumstances, the court’s exercise of jurisdiction on a hypothetical rather than definitive basis does

not inflict the kind of “concrete injury” required for Article III standing. Food Mktg. Inst. v. Argus Leader

Media, 588 U.S. 427, 433 (2019).

Second, even if the court of appeals’ ultimate decision to deny petitioner coram nobis relief counted as the

relevant Article III injury, a favorable ruling by this

Court would not redress that injury. Again, petitioner

challenges only the court of appeals’ failure to resolve

the jurisdictional question. At most, this Court would

vacate the judgment and remand, see Pet. 8, whereupon

the lower courts would either (a) conclude that they lack

jurisdiction and dismiss petitioner’s coram nobis petition, or (b) decide that they have jurisdiction and deny

relief on the merits, as they already did upon considering the merits. Either way, petitioner would not prevail, and this Court’s resolution of the questions presented would amount to an advisory opinion.

8

b. Petitioner appears to hypothesize (Pet. 28) that a

favorable ruling from this Court would make a difference because the court of appeals would “take[] a more

careful approach to the merits” if it had to resolve the

jurisdictional issue. But such speculation cannot satisfy

Article III’s redressability requirement. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992). And petitioner’s speculation is baseless. The court of appeals’

analysis of the merits below was both careful and correct. Indeed, petitioner does not directly dispute it.

A court may grant postconviction relief pursuant to

a writ of coram nobis only for errors “ ‘of the most fundamental character,’ ” and only when “sound reasons

exist[] for failure to seek appropriate earlier relief.”

United States v. Morgan, 346 U.S. 502, 512 (1954) (quoting United States v. Mayer, 235 U.S. 55, 69 (1914)); see

id. at 510-511; see also United States v. Denedo, 556

U.S. 904, 911 (2009). This Court has made clear that

“[c]ontinuation 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.” Morgan, 346 U.S. at 511.

As both the court of appeals and the district court

thoroughly explained, petitioner cannot satisfy those

demanding requirements. His coram nobis claim is

premised on documents that were in the defense’s possession long before sentencing. And that claim simply

rehashes petitioner’s flawed argument at sentencing

that his false statements could not have proximately

caused investor losses if state regulators were aware of

red flags with the AnC Vermont project. See Pet. App.

7a-11a; id. at 19a-23a. This Court’s resolution of petitioner’s jurisdictional claims would not result in “a dif-

9

ferent outcome on the merits” (Pet. 28) of his coram

nobis claim.

In short, petitioner seeks this Court’s review of jurisdictional questions that were not decided against him

below, in a transparent effort to obtain an opportunity

to litigate his factbound and meritless restitution claim

for a third time. That does not present a cognizable case

or controversy under Article III, so this Court would

lack jurisdiction to review petitioner’s claims.

2. Even if petitioner had standing, further review

would be unwarranted.

a. Petitioner urges (Pet. 8-16) this Court to resolve

disagreement among the courts of appeals on whether

and when it is appropriate for federal courts to exercise

“hypothetical statutory jurisdiction”—i.e., to reach and

reject a claim on the merits “[w]here a question of statutory (non-Article III) jurisdiction is complex and the

claim fails on other more obvious grounds.” Waleski v.

Montgomery, McCracken, Walker & Rhoads, LLP, 143

S. Ct. 2027, 2027 (2023) (Thomas, J., dissenting from denial of certiorari) (citation omitted). That practice is at

least in tension with Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83 (1998), which rejected hypothetical Article III jurisdiction, id. at 93-102, and suggested that courts may not assume statutory jurisdiction either, see id. at 101. Even so, the exercise of hypothetical statutory jurisdiction is often—as in this

case—of limited practical importance, insofar as courts

apply it when presented with claims “that are plainly

without merit.” Pet. App. 7a n.2. Indeed, as Justice

Scalia explained, when “the absence of a cause of action

is so clear that [the plaintiffs’] claims are frivolous,”

that “establish[es] another jurisdictional ground for

dismissal that the Steel Co. majority opinion acknowl-

10

edges.” Tenet v. Doe, 544 U.S. 1, 12 (2005) (Scalia, J., concurring) (citing Steel Co., 523 U.S. at 89). And this Court

has repeatedly denied petitions for certiorari presenting the same issue. See Waleski, supra (No. 22-914);

Vitol S.A. v. Autoridad de Energia Electrica de Puerto

Rico, 584 U.S. 1013 (2018) (No. 17-951); Hoffman v. Nordic Naturals, Inc., 582 U.S. 931 (2017) (No. 16-1172).

At all events, even assuming that the hypotheticaljurisdiction issue warranted this Court’s review at this

time, this case would be an unsuitable vehicle for addressing it for largely the same reasons petitioner lacks

standing: the courts below correctly rejected petitioner’s coram nobis claim on the merits, so the jurisdictional issue could not affect the ultimate outcome.

Even where it would technically have jurisdiction, this

Court does not grant a writ of certiorari to “decide abstract questions of law * * * which, if decided either

way, affect no right” of the parties. Supervisors v.

Stanley, 105 U.S. 305, 311 (1882); see The Monrosa v.

Carbon Black Exp., Inc., 359 U.S. 180, 184 (1959) (“While

this Court decides questions of public importance, it decides them in the context of meaningful litigation. Its

function in resolving conflicts among the [c]ourts of

[a]ppeals is judicial, not simply administrative or managerial.”).

Although petitioner contends (Pet. 27) that every

hypothetical-jurisdiction case will have the same vehicle

problem—which, in any event, would hardly counsel in

favor of certiorari—it is not clear that he is correct. In

Waleski, for instance, the petitioner contended that the

federal courts lacked statutory jurisdiction to consider

his state-law claims, and that the district court should

have remanded the claims to state court rather than

dismiss them on the merits. Waleski v. Montgomery,

11

McCracken, Walker & Rhoads, LLP (In re Tronox

Inc.), No. 20-3949, 2022 WL 16753119, at *1 (2d Cir.

Nov. 8, 2022), cert. denied, 143 S. Ct. 2027 (2023). In

other words, unlike petitioner here, the petitioner in

Waleski would have received the relief he sought from

the federal court of appeals—namely, the return of his

state-law claims to state court—if that court had determined there was no federal jurisdiction over his claim.

b. Nor should this Court grant review to address petitioner’s further contention (Pet. 20-23) that federal

courts do in fact have jurisdiction under the All Writs

Act, 28 U.S.C. 1651(a), to modify restitution orders by

writ of coram nobis. Petitioner’s claim is questionable.

The All Writs Act by its terms does not provide an independent basis for subject-matter jurisdiction, ibid.

(authorizing federal courts to “issue all writs necessary

or appropriate in aid of their respective jurisdictions”)

(emphasis added); see Syngenta Crop Prot., Inc. v.

Henson, 537 U.S. 28, 33 (2002), and petitioner identifies

no other source of jurisdiction.

In any event, the second question presented does not

warrant this Court’s review. It is an “abstract question[] of law” in the context of this case, Stanley, 105

U.S. at 311, for the same reasons discussed above. See pp.

7-10, supra. And neither court below resolved it, which is

the basis for petitioner’s hypothetical-jurisdiction claim.

This Court is “a court of review, not of first view.” Cutter

v. Wilkinson, 544 U.S. 709, 718 n.7 (2005).

Furthermore, there is no circuit conflict on the second

question presented, contra Pet. 22-23. As petitioner

notes (Pet. 22), the Seventh Circuit has stated in a

footnote—without meaningfully addressing the jurisdictional question—that coram nobis is available to challenge a restitution order in at least some circumstances.

12

United States v. Mischler, 787 F.2d 240, 241 n.1 (1986).

Petitioner identifies only two other cases as part of the

purported conflict—both of which are nonprecedential

and do not squarely address coram nobis jurisdiction in

the restitution context. Although United States v. Stefanoff, 149 F.3d 1192, 1998 WL 327888 (10th Cir. 1998)

(Tbl.), favorably cited Mischler, the Tenth Circuit’s decision concerned the collection of a criminal fine, not

restitution. Id. at *1. And Campbell v. United States,

330 Fed. Appx. 482 (5th Cir. 2009) (per curiam), was a

habeas case, so its statement that “[a] district court

lacks jurisdiction to modify a restitution order [by]

* * * writ of coram nobis” is dictum. Id. at 483. Petitioner’s contention about the reach of coram nobis does

not satisfy this Court’s criteria for granting further review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

MATTHEW R. GALEOTTI

PAUL T. CRANE

Attorneys

MAY 2025