Hager v. United States ( 1993 )

May 21, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1017
EDWARD B. HAGER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
Before
Breyer, Chief Judge,
Bownes, Senior Circuit Judge,
and Boudin, Circuit Judge.
Robert E. McDaniel with whom Devine, Millimet & Branch, P.A. was
on brief for petitioner.
-1-
1
Peter E. Papps, United States Attorney, for respondent.
May 21, 1993
BREYER, Chief Judge. In a hearing conducted on
May 29, 1990, the appellant, Edward Hager, entered a plea of
guilty to a charge of unlawfully importing four wild animal
pelts from Mexico into the United States. 16 U.S.C.
3372(a)(2)(A) (prohibiting importation of wildlife taken or
possessed in violation of foreign law), 3373(d)(1)(A)
(setting criminal penalties for violation). Immediately
after the hearing, the court sentenced Hager to serve one
year of unsupervised probation and to pay a $75,000 fine.
He did not appeal the court's judgment. On November 2,
1992, he asked the district court to issue a writ of coram
nobis, setting aside his conviction. See 28 U.S.C.
1651(a)("All Writs Act"); United States v. Morgan, 346 U.S.
502, 512 (1954). The district court denied the petition for
the writ. And, Hager appeals the court's decision.
Hager makes one argument on this appeal. He
points out that the district court, before accepting a
guilty plea, must make certain that the defendant's "plea is
voluntary." Fed. R. Crim. P. 11(d); see also North Carolina
v. Alford, 400 U.S. 25, 31 (1970) (plea must be "voluntary
and intelligent choice among the alternative courses of
action open to the defendant"). Hager says that, in his
-3-
3
case, the district court failed to make this determination.
The court asked him
"Now, have there been any threats made
by anyone against you, any member of
your family, or anyone near and dear to
you which compels you to offer a plea of
guilty here this morning?"
The appellant replied,
"Only the threat to my health, sir."
How, asks the appellant, could the district court know
enough about the matter after this brief exchange to satisfy
itself that the "threat" to his "health" was not so grave as
to make his plea essentially involuntary? Unless there is a
satisfactory answer to this question, he adds, his "guilty
plea" proceeding was so seriously flawed as to warrant
issuance of the coram nobis writ.
The legal answer to appellant's question is that
the writ of coram nobis is an unusual legal animal that
courts will use to set aside a criminal judgment of
conviction only "under circumstances compelling such action
to achieve justice." See Morgan, 346 U.S. at 511. Those
circumstances include an explanation of why a coram nobis
petitioner did not earlier seek relief from the judgment,
see United States v. Osser, 864 F.2d 1056, 1061-62 (3d Cir.
1988), Kiger v. United States, 315 F.2d 778, 779 (7th Cir.),
-4-
4
cert. denied, 375 U.S. 924 (1963); a showing that the
petitioner continues to suffer significant collateral
consequences from the judgment, see Morgan, 346 U.S. at 512-
13, Howard v. United States, 962 F.2d 651, 653 (7th Cir.
1992); and a demonstration that an error of "the most
fundamental character," relevant to the plea decision,
occurred. See Morgan, 346 U.S. at 512.
The appellant has neither explained why he did not
pursue a timely appeal nor shown significant, continuing
collateral consequences flowing from his conviction. And,
he has conceded the following facts: (1) at the time of the
plea hearing, the district court was aware of his medical
problems, both from the record of earlier proceedings in the
case prior to its transfer to New Hampshire and from
appellant's own description of these problems, later in the
course of the hearing; (2) when asked whether there was any
reason why the court should not accept appellant's plea,
appellant replied that there was not, see Key v. United
States, 806 F.2d 133, 136 (7th Cir. 1986) (defendant's
representations at plea hearing strong obstacle to
successful collateral attack on conviction); (3) appellant's
counsel, in response to the court's inquiry, stated his
opinion that the plea was in the best interests of his
-5-
5
client, see United States v. Guichard, 779 F.2d 1139, 1145
(5th Cir.), cert. denied, 475 U.S. 1127 (1986) (unless overt
coercion alleged, counsel's opinion good evidence of
voluntary and intelligent plea), citing United States v.
Araiza, 693 F.2d 382, 385 (5th Cir. 1982); and (4) the
government demonstrated at the coram nobis proceeding before
the district court that, two months after entering his plea,
appellant was well enough to travel to Africa to hunt wild
animals. These facts, together, convince us that
appellant's plea was not "involuntary;" that the court's
failure to ask more health-related questions was not
erroneous; and, certainly, that no error of a "fundamental
character" occurred. See Morgan, 346 U.S. at 512; Fed. R.
Crim. P. 11(h) (no redress for Rule 11 error which does not
violate substantial rights); cf. United States v. Timmreck,
441 U.S. 780, 784 (1979) (to justify habeas relief,
violation of Rule 11 must be "complete miscarriage of
justice" or "omission inconsistent with the rudimentary
demands of fair procedure," not just technical violation).
The judgment of the district court denying the
petition for a writ of coram nobis is
Affirmed.
-6-
6