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United States v. Bush

decided: October 31, 1989.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 74 CR 458 -- Hubert L. Will, Judge.

Easterbrook and Manion, Circuit Judges, and Grant, Senior District Judge.*fn*

Author: Easterbrook

EASTERBROOK, Circuit Judge

Earl Bush was Press Secretary to Mayor Richard J. Daley of Chicago between 1955 and 1973. His tenure came to an unhappy end when reporters discovered that Bush was a principal in the firm that had the display advertising concession at O'Hare Airport. Bush did not disclose his role when his firm bid on the contract or when he filed a financial disclosure form the City required of senior employees. Mayor Daley fired Bush and the United States prosecuted him for mail fraud, using the "intangible rights" theory then being developed in the lower federal courts. See United States v. Bush, 522 F.2d 641 (7th Cir. 1975), affirming his conviction. In June 1987 the Supreme Court repudiated the intangible rights doctrine, McNally v. United States, 483 U.S. 350, 97 L. Ed. 2d 292, 107 S. Ct. 2875 (1987), and in November 1988 Congress revived it, 18 U.S.C. § 1346, added by § 7603(a) of Pub. L. 100-690, 102 Stat. 4508 (1988). Ever since McNally federal courts have been inundated with requests for relief by the thousands of persons convicted of depriving their employers of the intangible right to honest services.

Although in 1975 we thought that Bush's acts were criminal, McNally holds that we misunderstood the statute. If a defendant who did not commit a crime remains in custody, 28 U.S.C. § 2255 requires relief. Davis v. United States, 417 U.S. 333, 41 L. Ed. 2d 109, 94 S. Ct. 2298 (1974), applied to McNally cases by Magnuson v. United States, 861 F.2d 166, 167 (7th Cir. 1988). The new § 1346 could not be applied retroactively, given the Ex Post Facto Clause of the Constitution. McNally holds that § 1341 did not countenance the intangible rights doctrine; that numerous incorrect decisions gave notice that the inferior courts would penalize certain conduct does not mean that it lawfully could be penalized. Contra, United States v. Berg, 710 F. Supp. 438, 442-43 (E.D.N.Y. 1989).

Section 2255 does not assist Bush, however; it authorizes relief only when a person is "in custody under sentence of a court established by Act of Congress", and Bush completed his sentence long ago. He never served a day in prison. After we affirmed the judgment, the district judge reduced the sentence to two years' probation, which Bush completed without incident. For more than a decade Bush has been free of obligations imposed by the judgment. Still he wants vindication, which he sought on the authority of the All Writs Act, 28 U.S.C. § 1651.


The All Writs Act authorizes courts to issue "all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." United States v. Morgan, 346 U.S. 502, 98 L. Ed. 248, 74 S. Ct. 247 (1954), holds that the writ of error coram nobis is such a writ but does not define when the "usages and principles of law" require its issuance. Federal courts that have issued or withheld the writ since 1954 have not said much about the conditions that require them to take one course or the other; the subject was not very significant, and one application for coram nobis per court per decade was the norm. McNally has given the old writ new prominence.

When our court took up the question in United States v. Keane, 852 F.2d 199 (7th Cir. 1988), cert. denied, 490 U.S. 1084, 109 S. Ct. 2109, 104 L. Ed. 2d 670 (1989), we started from the proposition that the writ has an historical meaning, which must be respected. Section 1651 preserves rather than enlarges customary writs. In resolving ambiguities finality is the dominant principle. Claims of error do not justify continual reexamination; one full and fair proceeding is sufficient. We concluded that the writ should issue only when the petitioner suffers an ongoing legal disability, presents questions that could not have been resolved at the time of the conviction, and, if pressing a strictly legal question about the adequacy of the charges, establishes that the indictment does not state an offense. These requirements come from two sources. History limits the writ to factual questions that have not been litigated before; to the extent the contemporary writ goes further, the principles underlying the "custody" requirement of § 2255 call for some ongoing legal disability as a custody-substitute.

Coram nobis is a phantom in the Supreme Court's cases, appearing occasionally but only in outline. Morgan (1954) says that it exists, but no case since 1954 returns to the subject, and only one earlier case, United States v. Mayer, 235 U.S. 55, 59 L. Ed. 129, 35 S. Ct. 16 (1914), addressed the appropriate scope of the writ. Justice Clifford discussed the doctrine on circuit, see United States v. Plumer, 27 Fed. Cas. 561, 572-74 (1859), concluding that the writ did not exist in the federal courts. Bronson v. Schulten, 104 U.S. 410, 26 L. Ed. 797, 4 A.F.T.R. (P-H) 4587 (1881), holds that authority to issue the writ is substantive rather than procedural, so federal courts need not follow state practice, but does not discuss when that power exists. That's it until 1914 (the few other cases mentioning the writ did not discuss when it should issue). So the history is largely English, and the practice largely state. See Abraham L. Freedman, The Writ of Error Coram Nobis, 2 Temple L.Q. 365 (1935).

At common law no court could reopen its own judgments after the end of the term at which the judgment was rendered unless stringent conditions were met, and legal error was not a sufficient justification; the writ was

available to bring before the court that pronounced the judgment errors in matters of fact which had not been put in issue or passed upon and were material to the validity and regularity of the legal proceeding itself; . . . for, it was said, "error in fact is not the error of the judges and reversing it is not reversing their own judgment." So, if there were error in the process, or through the default of the clerks, the same proceeding might be had to procure a reversal. But if the error were "in the judgment itself, and not in the process," a writ of error did not lie in the same court upon the judgment, but only in another and superior court. In criminal cases, however, error would lie in the King's Bench whether the error was in fact or law. The errors of law which were thus subject to examination were only those disclosed by the record, and as the record was so drawn up that it did not show errors in the reception of evidence, or misdirections by the judge, the remedy applied "only to that very small number of legal questions" which concerned "the regularity of the proceedings themselves."

In view of the statutory and limited jurisdiction of the Federal District Courts . . . there would appear to be no basis for the conclusion that, after the term, these courts in common law actions, whether civil or criminal, can set aside or modify their final judgments for errors of law. . . .

Mayer, 235 U.S. at 68-69 (citations omitted). This description erred, if at all, on the side of liberality. Canvassing the English sources, the Harvard Law Review concluded: "The writ was . . . distinctive in that it required the reconsideration of a judgment by a court which had already made a final disposition of the cause; but it cast no aspersions on the competency or finding of the court in its first judgment, for it lay only to call up facts which were unknown to the court at the time of judgment and which were not inconsistent with the record." Note, 37 Harv.L.Rev. 744 (1924). "[Coram] nobis is brought to correct an alleged error of fact not appearing on the record. . . . If ...

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