Petition for Writ of Certiorari — Mills v. United States

In The

Supreme Court of the United States

¢

OCIE MILLS AND CAREY MILLS,

Petitioners,

V.

UNITED STATES OF AMERICA,

Respondent.

.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

¢

PETITION FOR WRIT OF CERTIORARI

¢

RONALD W. JOHNSON

Kinsey, TROXEL, JOHNSON, & WaALsorsky, P.A.

438 East Government Street

Pensacola, Florida 32501

P.O. Box 12686

Pensacola, Florida 32574

(850) 434-5267

Florida Bar No.: 166489

Attorney of Record for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

~

off.

i

QUESTION PRESENTED

WHETHER THE DECISION OF THE COURT OF

APPEALS CONFLICTS WITH THE DECISION OF THE

SUPREME COURT IN UNITED STATES Vv. MORGAN?

ii

PARTIES TO THE PROCEEDING

Petitioners are Ocie and Carey Mills. They were the

Defendants in a criminal prosecution in the trial court

and the Appellees in the Eleventh Circuit Court of

Appeals.

Respondent is the United States of America, which

was the Plaintiff/prosecution in the criminal case in the

trial court and was the Appellant in the Eleventh Circuit

Court of Appeals.

TABLE OF CONTENTS

Page(s)

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STATEMENT OF JURISDICTION................... 1

CONSTITUTIONAL PROVISIONS INVOLVED...... 1

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REASONS FOR GRANTING THE WRIT ........... 4

I. THE DECISION OF THE COURT OF APPEALS

CONFLICTS WITH THE DECISION OF THE

SUPREME COURT IN UNITED STATES V.

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TABLE OF AUTHORITIES

Page(s)

CASES:

Bivens v. Six Unknown Named Federal Agents of the

Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct.

RSPR, 2D Ee. TH. BE GOP RGAE) onc ccccssicccesscsces 2

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075,

111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991)......... 4,8

Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6

ke SE Ae BO CUED cc cnccoccccusssvcetetewiawess 6, 7

Maddox v. United States, 146 U.S. 140, 13 S. Ct. 50,

Db En See ee, GE 6 cs ch ssdasicsb ceeds 8

Mills v. United States, 514 U.S. 1112, 115 S. Ct.

ROG Se Tex Ge ee Se dnb db chances occeesces 3

Mills v. United States, 36 F.3d 1052 (11th Cir. 1994) ...2, 3

Remmer v. United States, 347 U.S. 227, 74S. Ct. 450,

fe SF rrr rrr res ee 8

Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078,

ee & FF, Srey yer ee 7

Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13

= & 2 F:. ey rr rary errr ae 6, 7

United States v. Mayer, 235 U.S. 55, 35 S. Ct. 16, 59

es Se SOP CD dare nunead curednnateeeaens 4, 5, 6, 9

United States v. Mills, 221 F.3d 1201 (11th Cir. 2000) ...1, 2

United States v. Mills, 904 F.2d 713 (11th Cir. 1990) ..... 2

United States v. Mills, 817 F.Supp 1546 (N.D. Fla.

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TABLE OF AUTHORITIES - Continued

Page(s)

United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247,

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United States v. Swindall,:107 F.3d 831 (11th Cir.

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STATUTES AND RULEs:

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Clean Water Act, 33 U.S.C. § 1251 et seq........... I

River and Harbors Act, 33 U.S.C. § 403 et seq....... 2

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CONSTITUTION:

Sixth Amendment, United States Constitu-

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vi

TABLE OF APPENDICES

APPENDIX A

OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH CIRCUIT

DATED AND FILED AUGUST 8, 2000....... App. 1

APPENDIX B

ORDER OF THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF

FLORIDA DATED AND FILED AUGUST 13,

ADDD occccccccccccccccccccccccccceccccesscess App. 11

' PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of cer-

tiorari to review the judgment of the Eleventh Circuit

Court of Appeals in this Case.

+

OPINIONS BELOW

The Eleventh Circuit Opinion (Appendix A) is

reported at United States of America v. Mills, 221 F.3d 1201

(11th Cir. 2000). The district court opinion (Appendix B)

was entered on August 13, 1999.

¢

STATEMENT OF JURISDICTION

The judgment of the Eleventh Circuit Court of

Appeals was entered on August 8, 2000.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Sixth Amendment to the

United States Constitution. The Sixth Amendment states

in pertinent part:

“In all criminal prosecutions, the accused shall

enjoy the right to a trial . . . by an impartial

i

STATEMENT OF THE CASE

In 1989, following a jury trial without assistance of

counsel, the Millses, father and son, were convicted of

discharging pollutants and unlawfully excavating a canal

in the waters of the United States, in violation of the

Clean Water Act, 33 U.S.C. § 1251 et seq., and the River

and Harbors Act, 33 U.S.C. § 403 et seq., respectively. The

unlawful conduct in question was the Millses’ (1) place-

ment of landfill on lots they had purchased knowing that

the United States Army Corps of Engineers, having desig-

nated a portion of the land a wetland, required a permit

for any further development, and (2) enlargement of an

existing drainage ditch. See United States v. Mills, 221 F.3d

1201, 1202 (11th Cir. 2000), Mills v. United States, 36 F.3d

1052, 1054 (11th Cir. 1994) (per curiam), and United States

v. Mills, 817 F. Supp. 1546-1548 (N.D. Fla. 1993).

Both were sentenced to twenty-one months’

imprisonment, one year of supervised release, and a fine

of $5,000. 817 F. Supp. at 1546. The convictions were

summarily affirmed on direct appeal. See United States v.

Mills, 904 F.2d 713 (11th Cir. 1990).

In 1990 Ocie Mills filed a Bivens! action challenging

his arrest and prosecution. The district court dismissed

the complaint. The Eleventh Circuit affirmed the dis-

missal.

In 1991, the district court denied the Millses’ motion

to vacate their sentences under 28 U.S.C. § 2255. See

United States v. Mills, 817 F. Supp. 1546 (N.D. Fla. 1993).

1 Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971).

scaneiaediinieaitehinaina et —

The District Court stated in its opinion that, at the time in

question, the subject land was probably not a “wetland”

for purposes of the Clean Water Act. Id. at 1548. That

decision, too, was affirmed on appeal. See Mills, 36 F.3d

1052, 1057 (11th Cir. 1994). The United States Supreme

Court denied certiorari. See Mills v. United States, 514 U.S.

1112, 115 S. Ct. 1966, 131 L. Ed. 2d 856 (1995). As of

November 21, 1991, the Millses had completed their

terms of imprisonment and supervised release.

On April 11, 1996, the Millses filed a petition for writ

of error coram nobis. The basis for the petition was an

attached affidavit from Quentin Wise, one of the jurors in

the Millses’ 1989 criminal trial. Wise contacted Ocie Mills

after seeing Mills air his grievances against the govern-

ment in a television program. Wise’s affidavit stated that

the foreman of the jury, Thomas J. Smith, had given the

jury unfavorable information about the Millses that had

not been introduced into evidence at trial. According to

the affidavit, the source of Smith’s extrinsic information

was Smith’s son, who allegedly had worked for the “State

of Florida Water Management” and was familiar with the

Millses and their previous misconduct and problems with

the government. Wise’s affidavit also stated that Wise felt

intimidated by jury foreman Smith.

The district court declined to adopt the report and

recommendation and instead concluded that the Millses

had stated a cognizable basis for relief. It remanded the

matter to the magistrate judge for an evidentiary hearing

on the substance of the Millses’ allegations of jury mis-

conduct. The district court denied the government’s

motion for reconsideration, but granted its motion under

28 U.S.C. § 1292(b) to certify the matter for interlocutory

appeal. By order dated December 3, 1999, the court of

appeals granted the government permission to appeal '

under § 1292(b).

On August 8, 2000, the Court of Appeals reversed the

decision of the trial court and remanded for entry of

judgement for the government. Relying upon this Court’s

decision in United States v. Mayer, 235 U.S. 55, 35 S. Ct. 16,-

59 L. Ed. 129 (1914), the Eleventh Circuit held that allega-

tions of jury impartiality are not cognizable on coram

nobis as error of the most fundamental character. (App. 8).

¢

REASONS FOR GRANTING THE WRIT

I. THE DECISION OF THE COURT OF APPEALS CON-

FLICTS WITH THE DECISION OF THE SUPREME

COURT IN UNITED STATES V. MORGAN.

The Sixth Amendment to the United States Constitu-

tion expressly guarantees every accused person the right

in a criminal prosecution to have the right to a trial by an

impartial jury. This Court has characterized this right as

one of the few most fundamental interests guaranteed by

the Constitution. See Gentile v. State Bar of Nevada, 501 ‘

U.S. 1030, 1075, 111 S. Ct. 2720, 2745, 115 L. Ed. 2d 888 :

(1991). i

In 1954, the Supreme Court’s decision in United States

v. Morgan, 346 U.S. 502, 74 S. Ct. 247, 98 L. Ed. 248 (1954), |

revived the ancient writ of coram nobis by holding that the

writ was available in federal courts pursuant to the All

Writs Act, 28 U.S.C. § 1651(a). Morgan, 346 U.S. at 506,

fn.6, 511, 74 S. Ct. at 250, fn.6, 252; see United States v.

ET EER ene a A

Swindall, 107 F.3d 831, 834 (11th Cir. 1997). The Supreme

Court specifically stated that the enactment of 28 U.S.C.

§ 2255 is not a bar to coram nobis, and a district court has

the power to grant coram nobis. Morgan, 346 U.S. at 511, 74

S. Ct. at 252. The Supreme Court held in Morgan:

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.

Id.

The Supreme Court also held:

[when] no other remedy being then available

and sound reasons existing for failure to seek

appropriate earlier relief, this motion in the

nature of the extraordinary writ of coram nobis

must be heard by the federal trial court. (foot-

note omitted) Otherwise a wrong may stand

uncorrected which the available remedy would

right.

Morgan, 346 U.S. at 512, 74 S. Ct. at 253. Morgan also

noted that in United States v. Mayer, 235 U.S. 55, 35 S. Ct.

16, 59 L. Ed. 129 (1914) the Supreme Court stated that

coram nobis included errors “of the most fundamental

character.” Id.

In Morgan, the defendant pled guilty in 1939 and

filed his petition for writ of coram nobis sometime after

1950, alleging a violation of his Sixth Amendment consti-

tutional right through failure, without his competent

waiver, to furnish him counsel. 346 U.S. at 503-04, 74

S. Ct. at 248-49. In 1954, the United States Supreme Court

held that although Morgan had served his prison term,

the power to remedy an invalid sentence exists, and

Morgan was entitled to an opportunity to attempt to

show that the conviction was invalid. Morgan, 346 U.S. at

512-13, 74 S. Ct. at 253.

Ocie and Carey Mills have met all the requirements

of United States v. Morgan. They have been deprived of

their Sixth Amendment constitutional right to a trial by

an impartial jury. The Millses have no other remedy

available and sound reasons. exist for failure to seek

appropriate earlier relief. Within approximately one

month of receiving information about the misconduct of

the jury, the Millses filed their petition for writ of error

coram nobis in the trial court. (App. 16). The extraordinary

writ of coram nobis must be heard by the district court or

otherwise a wrong will stand uncorrected which the

available remedy would right.

England, from whom the Western World has

largely taken its concepts of individual liberty

and of the dignity and worth of every man, has

bequeathed to us safeguards for their preserva-

tion, the most priceless of which is that of trial

by jury. This right has become as much Ameri-

can as it was once the most English.

Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6

L. Ed. 2d 751 (1961). “The requirement that a jury’s ver-

dict must be based upon the evidence developed at the

trial goes to the fundamental integrity of all that is

embraced in the constitutional concept of trial by jury.”

Turner y. Louisiana, 379 U.S. 466, 472, 85 S. Ct. 546, 549, 13

L. Ed. 2d 424 (1965).

In essence, the right to jury trial guarantees to

the criminally accused a fair trial by a panel of

impartial, ‘indifferent’ jurors. The failure to

accord an accused a fair hearing violates even

the minimal standards of due process. In re

Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682;

Tumey v. State of Ohio, 273 U.S. 510, 47 S. Ct. 437,

71 L. Ed. 749, ‘A fair trial in a fair tribunal is a

basic requirement of due process.’ In re Mur-

chison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99

L. Ed. 942. In the ultimate analysis, only the jury

can strip a man of his liberty or his life. In the

language of Lord Coke, a juror must be as ‘indif-

ferent as he stands unsworn.’ Co.Litt. 155b. His

verdict must be based upon the evidence devel-

oped at the trial. Cf. Thompson v. City of

Louisville, 362 U.S. 199, 80 S. Ct. 624, 4 L. Ed. 2d

654. This is true, regardless of the heinousness

of the crime charged, the apparent guilt of the

offender or the station in life which he occupies.

It was so written into our law as early as 1807 by

Chief Justice Marshall in 1 Burr’s Trial 416... . -

Irvin v. Dowd, 366 U.S. at 722, 81 S. Ct. at 1642.

In the constitutional sense, trial by jury in a criminal

case necessarily implies at the very least that all the

evidence developed against a defendant shall come from

the witness stand in a public courtroom where there is

full judicial protection of the defendant’s right of con-

frontation, of cross-examination, and of counsel. Turner v.

Louisiana, 379 U.S. at 472-73, 85 S. Ct. at 550. The right to

a trial by jury in serious criminal cases is “fundamental”

to the American scheme of justice, and includes as its

most important element the right to a trial by an impar-

tial jury. Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S. Ct.

2078, 2080, 124 L. Ed. 2d 182 (1993).

In a criminal case, any private communication, con-

tact, or tampering directly or indirectly with a juror dur-

ing a trial about the matter pending before the jury is, for

obvious reasons, deemed presumptively prejudicial, if

not made in pursuance of known rules of the court and

the instructions and directions of the court made during

the trial, with full knowledge of the parties. The pre-

sumption is not conclusive, but the burden rests heavily

upon the government to establish, after notice to and

hearing of the defendant, that such contact with the juror

was harmless to the defendant. Maddox v. United States,

146 U.S. 140, 148-50, 13 S. Ct. 50, 52-53, 36 L. Ed. 917

(1892), Remmer v. United States, 347 U.S. 227, 229, 74S. Ct.

450, 451, 98 L. Ed. 654 (1954).

In the instant case, the Eleventh Circuit Court of

Appeals held:

We understand why the district court might

consider juror misconduct to be an error of the

most fundamental character. Were we writing

on a clean slate, we might agree because, as a

theoretical proposition, this argument is not

without persuasiveness. After all, the Sixth

Amendment expressly guarantees the right to

trial by an impartial jury, and the United States

Supreme Court has characterized this right as

one of the few most fundamental interests guar-

anteed by the Constitution.” See Gentile v. State

Bar of Nevada, 501 U.S. 1030, 1075, 111 S. Ct.

2720, 115 L. Ed. 2d 888 (1991).

Nevertheless, the argument that allegations

of jury impartiality should be cognizable on

coram nobis as error of the most fundamental

character may be compelling, but it is not the

law. See Mayer, 235 U.S. at 69, 35 S. Ct. 16.

[The Supreme Court has told us] more

than once . . . that, “[i]f precedent of this

Court has direct application in a case, yet

appears to rest on reasons rejected in some

other line of decisions, the Court of Appeals

should follow the case which directly con-

trols, leaving to this Court, the prerogative

of overruling its own decisions.” (Citations

omitted).

(App. 8-9). The decision of United States v. Mayer, supra,

and the Eleventh Circuit’s decision in the instant case,

conflicts with this Court’s decision in United States v.

Morgan, supra.

Relying upon United States v. Mayer, supra, the Elev-

enth Circuit held that claims of misbehavior or partiality

of jurors must be raised by a motion for new trial, as

newly discovered evidence. (App. 4, 9-10). In 1989 when

the Millses were convicted and in 1996 when they filed

their petition for writ of error coram nobis, there was a

two year statute of limitations to file a motion for new

trial alleging newly discovered evidence pursuant to Rule

33, Fed. R. Crim. P. (1988). Rule 33 was amended in 1998

and now provides for a three year statute of limitations to

file a motion for new trial alleging newly discovered

evidence.

United States v. Morgan, supra, did not place a statute

of limitations upon Constitutional error which was not

previously known to a person unjustly convicted of a

crime. Petitioners have suffered an error of the most

fundamental character. Ocie and Carey Mills’ Sixth

Amendment right to an impartial jury trial is no less

important than Morgan’s Sixth Amendment right to

10

counsel. Morgan was allowed by this Court to raise his

coram nobis claim more than eleven years after his Sixth

Amendment violation. The conflict is clear and irreconcil-

able. Certiorari is appropriate.

¢

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be granted.

Respectfully Submitted,

RONALD W. JOHNSON

KINSEY, TROXEL, JOHNSON,

& Watsorsky, P.A.

438 East Government Street

Pensacola, Florida 32501

(850) 434-5267

Florida Bar No.: 166489

Attorney of Record for Petitioners

App. 1

APPENDIX A

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 99-14934

D.C. Docket No. 88-03100-CR-RV

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

OCIE MILLS, CAREY MILLS,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Florida

(Filed August 8, 2000)

Before CARNES, MARCUS and FARRIS", Circuit Judges.

FARRIS, Circuit Judge:

We decide whether the defendants-appellees, Ocie

Mills and Carey Mills, may seek extraordinary relief by

way of a writ of coram nobis based on their allegation

that jurors in their criminal trial considered extrinsic

* Honorable Jerome Farris, U.S. Circuit Judge for the Ninth

Circuit, sitting by designation.

App. 2

evidence. We reverse and remand for entry of judgment

for the government.

The material facts are undisputed. In 1989, following

a jury trial, the Millses, father and son, were convicted of

discharging pollutants and unlawfully excavating a canal

in the waters of the United States, in violation of the

Clean Water Act, 33 U.S.C. § 1251 et seq., and the Rivers

and Harbors Act, 33 U.S.C. § 403 et seq., respectively. The

unlawfui conduct in question was the Millses’ (1) place-

ment of red clay landfill on lots they had purchased

knowing that the United States Army Corps of Engineers,

having designated a portion of the land a wetland,

required a permit for any further development, and (2)

enlargement of an existing drainage ditch. See Mills v.

United States, 36 F.3d 1052, 1054 (11th Cir. 1994) (per

curiam).

Both were sentenced to twenty-one months’

imprisonment, one year of supervised release, and a fine

of $5,000. The convictions were summarily affirmed on

direct appeal. See United States v. Mills, 904 F.2d 713 (11th

Cir. 1990).

In 1990, Ocie Mills filed a Bivens! action challenging

his arrest and prosecution. The district court dismissed

the complaint. The Eleventh Circuit affirmed the dis-

missal.

In 1991, the district court denied the Millses’ motion

to vacate their sentences under 28 U.S.C. § 2255. See

United States v. Mills, 817 F. Supp. 1546 (N.D. Fla. 1993).

1 Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971).

{J eee

App. 3

That decision, too, was affirmed on appeal. See Mills, 36

F.3d 1052, 1057 (11th Cir. 1994). The United States

Supreme Court denied certiorari. See United States v.

Mills, 514 U.S. 1112 (1995).

As of November 21, 1991, the Millses had completed

their terms of imprisonment and supervised release.

On April 11, 1996, the Millses filed a petition for writ

of error coram nobis. The basis for the petition was an

attached affidavit from Quentin Wise, one of the jurors in

the Millses’ 1989 criminal trial. Wise contacted Ocie Mills

after seeing Mills air his grievances against the govern-

ment in a television program. Wise’s affidavit stated that

the foreman of the jury, Thomas J. Smith, had given the

jury unfavorable information about the Millses that had

not been introduced into evidence at trial. According to

the affidavit, the source of Smith’s extrinsic information

was Smith’s son, who allegedly had worked for the “State

of Florida Water Management” and was familiar with the

Millses and their previous misconduct and problems with

the government. Wise’s affidavit also stated that Wise felt

intimidated by jury foreman Smith.

The district court declined to adopt the report and

recommendation and instead concluded that the Millses

had stated a cognizable basis for relief. It remanded the

matter to the magistrate judge for an evidentiary hearing

on the substance of the Millses’ allegations of jury mis-

conduct. The district court denied the government’s

motion for reconsideration, but granted its motion under

28 U.S.C. § 1292(b) to certify this matter for interlocutory

appeal. By order dated December 3, 1999, we granted the

government permission to appeal under § 1292(b).

App. 4

THE PARTIES’ CONTENTIONS

A. The Government's Position

Relying primarily on United States Supreme Court

authority, the government contends that the basis for the

Millses’ coram nobis petition - newly discovered evi-

dence that the jury considered extrinsic evidence and

therefore was not impartial - is unavailable to remedy

alleged “prejudicial misconduct in the course of the trial,

the misbehavior or partiality of jurors, and newly discov-

ered evidence.” See United States v. Mayer, 235 U.S. 55, 69

(1914); United States v. Morgan, 346 U.S. 502, 512 (1954).

The government points out that the writ of coram nobis is

available only to remedy errors “of the most fundamental

character,” see Mayer, 235 U.S. at 69, and argues that

expanding the availability of coram nobis relief by per-

mitting the Millses to proceed would undermine the

finality of criminal convictions and the sanctity of jury

deliberations.

B. The Millses’ Position

The Millses contend that the government has misread

Mayer, which, in their view, does not foreclose pursuit of

coram nobis relief on the basis they have asserted. In the

Millses’ view, coram nobis relief is available where, as

here, it is necessary to achieve justice when no other

remedy is available and sound reasons exist for failure to

seek earlier relief.

-———— -

App. 5

DISCUSSION

The issue is purely a question of law, which we

review de novo. See United States v. Duarte-Acero, 208 F.3d

1282, 1284 (11th Cir. 2000).

Federal courts have authority to issue a writ of error

coram nobis under the All Writs Act, 28 U.S.C. § 1651(a).

The writ of error coram nobis is an extraordinary remedy

of last resort available only in compelling circumstances

where necessary to achieve justice. See United States v.

Swindall, 107 F.3d 831, 834 (11th Cir. 1997). A court’s

jurisdiction over coram nobis petitions is limited to the

review of errors “of the most fundamental character.”

Mayer, 235 U.S. at 69.2 Such errors do not include “preju-

dicial misconduct in the course of the trial, the mis-

behavior or partiality of jurors, and newly discovered

evidence.” Id. In addition, courts may consider coram

nobis petitions only where no other remedy is available

and the petitioner presents sound reasons for failing to

seek relief earlier. See Morgan, 346 U.S. at 512.°

The Millses have challenged the applicability of the

holding in Mayer to this case. The defendant in Mayer,

Albert Freeman, was convicted in federal district court of

2 The writ of coram nobis has been abolished in civil cases.

See Fed. R. Civ. P. 60(b).

3 When Mayer was decided, district courts held formal

terms of operation lasting for a specified period. See 28 U.S.C.A.

§ 138 (West 1993) (in particular Historical and Statutory Notes,

1948 Acts). A district court could entertain a motion for new

trial only if it was filed during the same term of court in which

the judgment was entered. See Mayer, 235 U.S. at 67-69; Fed. R.

Civ. P. 77 advisory committee's note.

App. 6

misuse of the mails. See Mayer, 235 U.S. at 56. He

appealed his conviction. See id. Ten months later, after the

expiration of the term of court during which Freeman’s

judgment of conviction was entered, Freeman filed a

motion in district court to set aside his conviction or for a

new trial. One of the grounds for the motion was Free-

man’s allegation that, during voir dire, one juror con-

cealed a bias against Freeman. See id. at 57. Despite, (1)

the expiration of the term of court during which Freeman

was convicted, and (2) Freeman’s pending appeal. of his

conviction, the government purported to consent to the

district court’s jurisdiction over the new trial motion.

District Court Judge Mayer granted the motion. The gov-

ernment obtained an order from the court of appeals

directing Judge Mayer to show cause why a writ of

prohibition should not issue forbidding the granting of a

new trial.

The Supreme Court held that the district court was

without jurisdiction to entertain Freeman’s new trial

motion for two independent reasons: (1) the term during

which Freeman’s conviction issued had expired, and the

facts did not warrant recognizing any exceptions to this

jurisdictional bar, see id. at 67-69, and (2) once Freeman

appealed his conviction in the court of appeals, the dis-

trict court was deprived of jurisdiction over his case

despite the government's purported consent, see id. at 71.

The Court explained that where errors of the most

fundamental character existed, a district court might have

4 The government recognizes that no other remedy is

available to the Millses and that they have presented sound

reasons for failing to seek relief earlier.

sireriemeeeememiasiataiaiiaisiiiiiiiciiiieimiiaiiiaaiiae

App. 7

“correctional jurisdiction” like that available at common

law under coram nobis. Id. at 69. The Court, however, -

explicitly refused to decide whether the writ of coram

nobis remained an available remedy in the federal courts,

and further stated that, even if it was, such relief would

be unavailable to Freeman. See id. at 69. The Court ulti-

mately held that the proper remedy “[i}n cases of prejudi-

cial misconduct in the course of trial, the misbehavior or

partiality of jurors, and newly discovered evidence” is

“by a motion for a new trial.” Id.

Subsequent controlling opinions have confirmed the

applicability in federal courts of the writ of coram nobis

and, moreover, have treated Mayer as the source of the

applicable rule governing the circumstances under which

coram nobis relief is available. Specifically, the Court in

United States v. Morgan, 346 U.S. 502, 512-13 (1954), citing

Mayer, held that criminal defendants could pursue coram

nobis relief to remedy errors “of the most fundamental

character.” Morgan, 346 U.S. at 512 (citation omitted).°

Post-Morgan decisions by the Supreme Court, the

Fifth Circuit, and the Eleventh Circuit have treated Mayer

as the source of the controlling rule on the availability of

coram nobis relief. See Carlisle v. United States, 517 U.S.

416, 428-29 (1996) (citing Mayer for the applicable stan-

dard governing coram nobis petitions, and stating that it

is difficult to conceive of a situation in a federal criminal

5 The circumstances in Morgan warranting the defendant’s

pursuit of coram nobis relief were his allegations that, without

his competent waiver, the district court had failed to appoint

him counsel. See id. at 504.

App. 8

case today in which coram nobis relief would be neces-

sary or appropriate); United States v. Addonizio, 442 US.

178, 186 (1979) (citing Mayer for the proposition that

coram nobis relief is limited to errors of the most funda-

mental character); Lowery v. United States, 956 F.2d 227,

230 (11th Cir. 1992) (per curiam) (treating Mayer standard

as controlling); Moody v. United States, 874 F.2d 1575, 1577

(11th Cir. 1989) (treating Mayer standard as controlling, |

and affirming denial of coram nobis petition based on |

allegations of newly discovered evidence); Granville v. ©

United States, 613 F.2d 125, 126 n.1 (5th Cir. 1980) (per

curiam) (treating Mayer standard as controlling); United

States v. Carter, 437 F.2d 444, 445 (5th Cir. 1971) (same).

We understand why the district court might consider

juror misconduct to be an error of the most fundamental

character. Were we writing on a clean slate, we might

agree because, as a theoretical proposition, this argument

is not without persuasiveness. After all, the Sixth Amend-

ment expressly guarantees the right to trial by an impar- |

tial jury, and the United States Supreme Court has

characterized this right as one of the few most fundamen-

tal interests guaranteed by the Constitution. See Gentile v.

State Bar of Nevada, 501 U.S. 1030, 1075 (1991).

Nevertheless, the argument that allegations of jury

impartiality should be cognizable on coram nobis as error

of the most fundamental character may be compelling,

but it is not the law. See Mayer, 235 U.S. at 69.

[The Supreme Court has told us] more than

once .. . that, “[i]f a precedent of this Court has

direct application in a case, yet appears to rest

on reasons rejected in some other line of deci-

sions, the Court of Appeals should follow the

Licmetinmieiiaiiiimcatie a ilcal

App. 9

case which directly controls, leaving to this

Court, the prerogative of overruling its own

decisions.” Rodriguez de Quijas v. Shearson/Ameri-

can Express, Inc., 490 U.S. 477, 484, 109 S.Ct.

1917, 1921-22, 104 L.Ed.2d 526 (1989); accord,

e.g., Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct.

1997, 2017, 138 L.Ed.2d 391 (1997) (“We do not

acknowledge and we do not hold that other

courts should conclude our more recent cases

have, by implication, overruled an earlier prece-

dent.”). We have followed that admonition. See

Brisentine v. Stone & Webster Engineering Corp.,

117 F.3d 519, 525 (11th Cir. 1997) (“It may be that

the Supreme Court has cut Alexander [v. Gardner-

Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d

147 (1974)] back so far that it will not survive.

Perhaps, but we are not convinced we are autho-

rized to sing the dirge of Alexander. We will

leave that to the Supreme Court, which has

admonished courts of appeals . . . ‘[to leave

it] the prerogative of overruling its own deci-

sions.’ ”) (quoting Rodriguez de Quijas, 490 U.S.

at 484, 109 S.Ct. at 1921-22); Engineering Contrac-

tors Ass'n v. Metropolitan Dade County, 122 F.3d

895, 903 (11th Cir. 1997).

Jefferson County v. Acker, 210 F.3d 1317, 1319 (11th Cir.

2000).

Relying on Mayer, we have held that allegations of

newly discovered evidence are not cognizable in a peti-

tion for coram nobis. See Moody, 874 F.2d at 1577 (holding

that coram nobis is improper vehicle for claims of newly

discovered evidence, and observing that coram nobis

petitions are similar to motions for new trial).

App. 10

We therefore reject the Millses’ argument that the

government’s reading of Mayer is incorrect. In the

Millses’ view, Mayer simply decided that Freeman could

not seek relief in district court because he had another

remedy available to him, i.e., pursuit of the appeal of his

conviction.

The Millses, however, are mistaken. The Court’s two

grounds for concluding that the district court lacked

jurisdiction in Mayer were independent, each alone suffi-

cient to dispose of the case. The Supreme Court's holding

in Mayer that Freeman’s appeal of his conviction deprived

the district court of jurisdiction did not affect its separate

holding that Freeman had failed to allege error of a

fundamental character such as would have warranted

pursuit of coram nobis relief at common law.

We reverse and remand for entry of judgment for the

government.

REVERSED and REMANDED.

ee

App. 11

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES

OF AMERICA,

V.

OCIE MILLS and

CAREY C. MILLS,

Defendants.

CASE NO. 88-03100/RV

/

ORDER

This matter is before me now for consideration of the

Magistrate Judge’s Report and Recommendation dated

March 17, 1999. The defendants have been furnished a

copy of the Report and Recommendation and have been

afforded an opportunity to file objections pursuant to

Title 28, United States Code, Section 636(b)(1). I have

made a de novo determination of those portions to which

an objection has been made.

The petition under consideration is the petition for

writ of error coram nobis filed by the defendants. The

defendants were originally convicted by jury trial in 1989

of five counts of discharging pollutants into the waters of

the United States without a permit, in violation of the

Clean Water Act 33 U.S.C. § 1251 et seq.], and one count of

unlawfully excavating a canal in the navigable waters of

the United States, in violation of the Rivers and Harbors

Act [33 U.S.C. § 403 et seq.]. The were each sentenced by

the late Senior Judge Winston E. Arnow to a term of

App. 12

twenty-one months imprisonment, followed by one year

of supervised release, and a fine of $5,000. The defen-

dants’ convictions were affirmed upon direct appeal in

United States v. Mills, 904 F.2d 713 (11th Cir. 1990) (table).

The defendants filed a motion to vacate sentence pur-

suant to Title 28, United States Code, Section 2255.

Although I determined that their offenses of conviction

were based upon seriously flawed legal principles, I was

forced to conclude that any change in the law had to be

made by Congress and not by the Courts. Therefore, |

denied their motion on March 31, 1993. United States v.

Mills, 817 F. Supp. 1546 (N.D. Fla. 1993). That decision

was subsequently affirmed by the Eleventh Circuit Court

of Appeals in United States v. Mills, 36 F.3d 1052 (11th Cir.

1994). The Supreme Court of the United States also

denied certiorari. Cert. denied, 514 U.S. 1112, 115 S.Ct.

1966, 131 L.Ed.2d 856 (1995).

In their current petition for writ of error coram nobis,

the defendants contend that they are entitled to a new

trial because of juror misconduct. Attached as an exhibit

to the petition is the affidavit of Quentin Wise, a member

of the jury that convicted the defendants. Wise states in

his affidavit that Mr. Smith, the foreman of the jury,

repeatedly told Wise that defendant Ocie Mills had prior

cases, that the defendant had threatened environmental

people on his property with a gun, and that if the defen-

dant was found guilty, he would not be sentenced to a

prison term and would only have to remove soil from the

property. (doc. 185, att.) Wise also states that Mr. Smith

told Wise that “he was familiar with Ocie Mills’ prior

problems and wrong doings because his son was

employed with the State of Florida Water Management.”

App. 13

Id. The defendants indicate that Quentin Wise contacted

the defendants after watching a television program fea-

turing defendant Ocie Mills on March 3, 1996.

According to the government, the defendants have

not stated a claim for which relief can be granted pur-

suant to a writ of error| coram nobis. Under the Rules of

Criminal Procedure, a motion for new trial on newly

discovered evidence must be filed within three years after

the verdict or finding of guilt. Rule 33, Fed. R. Crim. P.

The government contends that the issue of juror miscon-

duct should have been raised in a timely motion for new

trial, and cannot be raised in a petition for writ of error

coram nobis. The government concludes that because a

motion for new trial based upon newly discovered evi-

dence is untimely, the petition must be denied. The Mag-

istrate Judge agreed, and recommended denial of the

petition. (doc. 194)

Federal courts have authority to issue a writ of error

coram nobis under the All Writs Act [28 U.S.C. § 1651(a)].

The writ is a limited remedy of last resort, and is limited

to cases in which “no statutory remedy is available or

adequate.” Lowery v. United States, 956 F.2d 227, 228-29

(11th Cir.1992) (citations omitted). “Continuation of liti-

gation after final judgment and exhaustion or waiver of

any statutory right of review should be allowed through

this extraordinary remedy only under circumstances com-

pelling such action to achieve justice.” United States v.

Morgan, 346 U.S. 502, 511, 74 S. Ct. 247, 252, 98 L. Ed. 248

(1954). “Such compelling circumstances exist only when

the error involves a matter of fact of the most fundamen-

tal character which has not been put in issue or passed

upon and which renders the proceeding itself irregular

App. 14

and invalid.” Moody v. United States, 874 F.2d 1575, 1576

(11th Cir. 1989) (citing United States v. Mayer, 236 U.S. 55,

69, 35 S. Ct. 16, 19-20, 59 L. Ed. 129 (1914)).

The government relies primarily upon Moody v.

United States, 874 F.2d 1575 (11th Cir. 1989). In Moody, the

petitioner sought relief from a conviction on the ground

of newly discovered evidence that allegedly proved that

he did not commit the crime. The district court dismissed

the petitioner’s petition for writ of error coram nobis. On

appeal, the Eleventh Circuit defined the issue as whether

the petitioner’s allegation of newly discovered evidence

was the “fundamental type of irregularity” for which the

writ provided a remedy. Id. at 1577. The Eleventh Circuit

held that “[a] claim of newly discovered evidence rele-

vant only to the guilt or innocence of the petitioner is not

cognizable in a coram nobis proceeding.” Id. According to

the Eleventh Circuit, “[t]he rule that new evidence is not

a claim for which the writ . . . may be issued is consistent

with the limitation imposed on movants seeking a new

trial based upon newly discovered evidence.” Id. See Reid

v. United States, 149 F.2d 334 (5th Cir. 1945) (petitioner

was denied relief because coram nobis petition was, in

substance, merely an untimely motion for a new trial

based on newly discovered evidence).

In this case, the defendants allege that juror miscon-

duct occurred when the foreman of the jury obtained

information about the defendants from outside the court-

room and communicated such information to other jurors

during the trial. This is newly discovered evidence, but

the time for a new trial on that ground has long expired

and there is no statutory remedy now available. Thus, the

defendants’ only possible source of relief is via a writ of

App. 15

error coram nobis. The issue presented is whether the

substantive allegation supporting the defendants’ present

challenge to their convictions involve a “fundamental”

constitutional principle.

Among the most fundamental protections available

to an accused is the right to trial by an impartial jury

guaranteed by the Sixth Amendment. Ristaino v. Ross, 424

U.S. 589, 595 n.6, 96 S. Ct. 1017, 1020 n.6, 47 L. Ed. 2d 258

(1976); Singer v. United States, 380 U.S. 24, 36, 85 S. Ct. 783,

790, 13 L. Ed. 2d 630, 638 (1965). The requirement that the

jury verdict be based on the evidence produced at trial

“goes to the fundamental integrity of all that is embraced

in the constitutional concept of trial by jury.” Turner v.

State of Louisiana, 379 U.S. 466, 472, 86 S. Ct. 546, 549, 13

L. Ed. 2d 424 (1965). “Extrinsic evidence, evidence that

has not been subject to the procedural safeguards of a fair

trial, threatens such constitutional safeguards as the

defendant's right of confrontation, of cross-examination,

and of counsel.” United States v. Perkins, 748 F.2d 1519,

1533 (11th Cir. 1984). When jurors consider extrinsic evi-

dence, a new trial is required if the evidence “poses a

reasonable possibility of prejudice to the defendant.”

United States v. Rowe, 906 F.2d 654, 656 (11th Cir. 1990).

Although the defendant has the burden of demonstrating

prejudice, the court must investigate an alleged impropri-

ety “upon merely a colorable showing of extrinsic influ-

ence.” Id.

The defendants’ allegation of juror misconduct is not

merely a “claim of newly discovered evidence relevant

only to the guilt or innocence of the petitioner.” Moody,

874 F.2d at 1577. Instead, the defendants have alleged a

constitutional violation that affects the validity of the

App. 16

underlying proceeding. The defendants have alleged a

fundamental constitutional error, as did the defendant in

United States v. Morgan, supra, who alleged that he was

not advised of his constitutional rights and did not com-

petently or intelligently waive counsel prior to entering

his plea of guilty. Upon consideration of the Morgan

petition, the Supreme Court of the United States held:

Where it cannot be deduced from the record

whether counsel was properly waived, we

think, no other remedy being then available and

sound reasons existing for failure to seek appro-

priate other relief, this motion in the nature of

the extraordinary writ of coram nobis must be

heard by the federal trial court.

United States v. Morgan, supra, 346 U.S. at 511-12, 74 S. Ct.

at 252-53.

In this case, the defendants did not become aware of

the alleged juror misconduct until well after the time

limits had expired on all normally available avenues of

relief. The defendants filed the present petition approxi-

mately a month after learning of the alleged misconduct.

Because the defendants have alleged facts that would

support a claim of constitutional error - a fundamental

error that could potentially render the underlying pro-

ceeding invalid - the defendants are entitled to an evi-

dentiary hearing and an opportunity to present evidence

supporting their petition. See, e.g., Lujan v. United States,

424 F.2d 1053 (5th Cir. 1970); United States v. Carlino, 400

F.2d 56 (2d Cir. 1968).

Having considered the report and recommendation

and all objections thereto timely filed by the parties, I

have determined that the report and recommendation

Sern Seer

App. 17

should not be adopted. Instead, the matter is remanded

to the Magistrate Judge for an evidentiary hearing on the

petition for writ of error coram nobis.

DONE AND ORDERED this 13th day of August,

1999.

/s/ Roger Vinson

ROGER VINSON

Chief Judge