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January 6, 1989


The opinion of the court was delivered by: DUFF


 On June 25, 1976, a federal jury found Robert Craig, Peter V. Pappas, Frank P. North, Jr., and Jack Walker guilty of numerous counts of mail fraud and conspiracy, in violation of 18 U.S.C. §§ 371 and 1341 (1976). The government obtained these convictions by proving that Pappas had schemed to pass legislation easing weight limits on Illinois highways for cement trucks. He did this by channelling bribes to various state officials, including Craig, North, and Walker, who were Illinois legislators. Craig and North also served with Pappas on the Illinois Motor Vehicle Laws Commission, which Pappas swayed with bribes to recommend favorable legislation. The government argued at trial that this scheme defrauded the citizens and the state of Illinois of their right to the loyal, honest, and faithful services of their public employees. Additionally, the government submitted that Craig and Pappas had violated the Travel Act, codified at 18 U.S.C. § 1952. The jury agreed.

 Following trial, the court sentenced Craig, North, and Walker each to three years imprisonment and a $ 5,000 fine, and sentenced Pappas to five years imprisonment and a $ 10,000 fine. The defendants appealed their convictions to the Seventh Circuit, but their appeals proved unsuccessful. See United States v. Craig, 573 F.2d 455 (1977). The four left for prison and served their sentences. Craig subsequently paid his fine, but the other three did not: Pappas paid $ 3,250, and has not paid anything since August 1987; North paid $ 1,600, and has not paid anything since December 1987; while Jack Walker died in 1980, having paid only $ 200.

 Pappas and North feel that they have a good reason for not paying what they owe to the government. In the summer of 1987, the Supreme Court handed down its decision in McNally v. U.S., 483 U.S. 350, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987). The defendants in McNally were engaged in a kickback scheme involving the awarding of state insurance contracts. The government obtained convictions against the defendants under 18 U.S.C. § 1341 through use of the same theory of fraud employed in this case: the McNally defendants had deprived the citizens and the State of Kentucky of their right to loyal, honest, and faithful service from their government employees. The Supreme Court, however, reasoned that such a right did not constitute property, which it held to be a necessary element of the crime of mail fraud. The Court thus reversed the convictions.

 The acts in this case are no more honorable than those in McNally, but the convictions for the acts are no less illegal. Craig, Pappas, North, and the Estate of Jack Walker thus have petitioned this court for a writ of coram nobis, pursuant to 28 U.S.C. 1651 (1982). They ask this court to set aside their convictions and return the fines that they have paid, in light of the holding of McNally. They are not the first people in this Circuit to seek such a writ after having been convicted under the "intangible rights" theory of mail fraud. See, for example, U.S. v. Keane, 852 F.2d 199 (7th Cir. 1988); U.S. v. Bonansinga, 855 F.2d 476 (7th Cir. 1988). As these cases demonstrate, a person does not have the right to obtain the writ merely because a law under which he or she is convicted evolves to the point where such a conviction would be impossible. Rather, the person must show that the defect in his or her conviction "is the type of defect that would have justified relief during the term of imprisonment," and that it "produces lingering civil disabilities (collateral consequences)." Keane, 852 F.2d at 203.

 The petitioners contend that the government's use of the intangible rights theory of mail fraud resulted in a defect that would have justified relief under 28 U.S.C. § 2255, the federal statute that provides a remedy for those improperly held in federal custody. They argue that the indictments for mail fraud and conspiracy would not have been possible without use of the intangible rights theory, and for that reason their convictions are illegal. Assuming for the moment that this contention is true, the petitions of North and Walker's Estate are the only ones that merit further consideration. This is because the jury found Pappas and Craig guilty of violating the Travel Act, which provides in part:

(a) Whoever travels in interstate . . . commerce or uses any facility in interstate . . . commerce, including the mail, with intent to --
(1) distribute the proceeds of any unlawful activity; or . . .
(3) otherwise promote, manage, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,
and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $ 10,000 or imprisoned for not more than five years, or both.
(b) As used in this subsection "unlawful activity" means . . . extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.

 Counts 13 and 14 of the indictment charged Pappas, Craig, and others of causing Morris A. Lauwereins to travel in interstate commerce between Indianapolis, Indiana, and the Northern District of Illinois to facilitate the promotion, management, and carrying on of bribery, in violation of Ill.Rev.Stat. ch. 38, para. 33-1 (1975). The Supreme Court's rejection of the intangible rights theory of mail fraud in McNally did nothing to change the Illinois crime of bribery, and thus Pappas and Craig's Travel Act convictions are as valid today as they were prior to McNally. For this reason, Pappas and Craig are not entitled to a writ of coram nobis.

 North and the Estate of Walker's petitions for the writ present more complicated cases, as both North and Walker were convicted only of mail fraud and conspiracy to commit mail fraud. Moreover, the government relied solely upon the intangible rights theory of mail fraud to obtain their convictions. This in itself does not entitle either Walker's Estate or North to the writ. As the Seventh Circuit noted in Keane, "an indictment adverting principally to rights to faithful service still may lead to a valid conviction if the prosecution shows that the defendant defrauded someone out of property, including intangible property." While that showing need not be one that would overcome objections to the prosecution's case on direct appeal, the statement of any offense in the indictment marks "the end of things for relief in the nature of coram ...

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