The opinion of the court was delivered by: The Honorable David O. Carter, Judge
Julie Barrera Not Present Courtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS: NONE PRESENT NONE PRESENT
PROCEEDING (IN CHAMBERS): ORDER GRANTING PETITIONER'S WRIT OF ERROR CORAM NOBIS
Before the Court is Petitioner Lorena Colino's Petition for Writ of Error Coram Nobis pursuant to 28 U.S.C. § 1651(a) (Dkt. 206) ("Pet.").*fn1 The Court finds this matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; Local R. 7-15. After considering the moving, opposing, and replying papers, and for the reasons stated below, the Court hereby GRANTS Petitioner a Writ of Error Coram Nobis and vacates her eleven convictions for honest services mail fraud.
Lorena Colino ("Petitioner") was formerly employed by the Social Security Administration ("SSA"). Pet. at 5. In 2005, Petitioner was indicted on eleven counts of honest services mail fraud in violation of 18 U.S.C. §§ 1341 & 1346 and one count of lying to a federal agency in violation of 18 U.S.C. § 1001. Pet. Ex. A.; First Superceding Indictment (Dkt. 58) at 1. The indictment alleged that Petitioner abused her position with the Social Security Administration by processing and approving social security card applications for illegal aliens who were not entitled to receive social Id. at 2-3. The indictment alleged that Petitioner engaged in this scheme with Ramon Rojas ("Rojas"), a person not employed by the SSA. Id. Specifically, the indictment stated:
(c) Working in concert with defendant ROJAS, defendant COLINO would wrongfully approve and process SS-5 applications for illegal aliens who she knew were not entitled to receive the subject Social Security Cards. Defendant ROJAS would provide defendant COLINO with the name of a card applicant and other information needed to complete an SS-5 application or, in some instances, provide defendant COLINO with completed SS-5 application forms. Defendant COLINO would then falsely note on each such application that the applicant appeared before her and presented verified forms of specified identification.
(d) The card applicants generally were charged approximately $1,300 to $3,000 for each Social Security Card.
Based on that alleged conduct, the indictment charged Petitioner with "execut[ing] a scheme to defraud the United States Government of its right to honest services by means of materially false and fraudulent pretenses and representations and the concealment of material facts" and indicted her on eleven counts of honest services mail fraud in violation of 18 U.S.C. §§ 1341 & 1346. As is apparent from the above-quoted portion of the indictment, the respective roles of Petitioner and Rojas were clearly alleged except as to who charged the applicants the $1,300 to $3,000 fee. The indictment did not allege that Petitioner charged the fee or was aware that the fee was charged. See Pet. Ex. A. at
The charge of lying to a federal agency in violation of 18 U.S.C. § 1001 was supported by claims that Petitioner lied to agents from the SSA's Office of Inspector General. Id. at 5.
The case proceeded to a jury trial in September 2005. Testimony at trial established that illegal aliens would pay Rojas a fee and, in exchange, Rojas would collect their information and pass it along to Petitioner, who would approve the fraudulent social security card applications. Govt.'s Answer to Pet'r's Pet. for Writ of Error Coram Nobis ("Answer") (Dkt. 212) at 5-6.
With respect to the honest services mail fraud charges, the Government offered that Petitioner was required to discharge her duties to the SSA honestly and faithfully, without a conflict of interest. Pet'r's Reply to Govt.'s Answer ("Reply") (Dkt. 217) at 2-3. SSA regulations prohibited employees from performing services for friends, relatives, or acquaintances because by performing such a service, there was a substantial risk of a conflict of interest. Id. Thus, the prosecution presented evidence that, by performing services for Rojas, Petitioner violated SSA rules protecting against conflicts of interest; Petitioner thereby defrauded the SSA of her honest services, in violation of 18 U.S.C. §§ 1341 & 1346.
In order to establish a motive for Petitioner's actions, the Government sought to introduce evidence showing that Petitioner benefitted financially from the scheme. Id. at 7. The government introduced evidence that, during the relevant period, cash deposits totaling approximately $7,000 had been made into Petitioner's bank account. Id. The Government also elicited testimony that Petitioner received furniture (a "floor model") from the store Rojas managed at a substantial discount. Id.
This profit-motive theory was hotly contested. Petitioner introduced testimony at trial that she received regular rent payments from her sister in cash, and she also submitted a sworn declaration at sentencing stating that her husband would often cash checks with the issuing bank and then deposit that cash into their joint account. Pet. at 7. She also introduced evidence that she made a good living from her SSA wages and from a second job teaching English as a second language. Id. She challenged the testimony about receiving a good deal on furniture by having the testifying witness admit that it was not unusual to discount worn floor models; Petitioner also sought to highlight inconsistencies in that witness' testimony. Id.
Petitioner did not testify at trial, nor did her co-defendant Rojas, who pled guilty and signed a cooperation agreement with the Government. Id. None of the illegal alien applicants who paid Rojas testified that they knew who Petitioner was or that they paid her. Id.
The jury was instructed that in order to convict Petitioner of honest services mail fraud, they must find each of the following four elements beyond a reasonable doubt:
First, defendant knowingly devised or participated in a scheme or plan to deprive the [SSA] of its right to honest services.
Second, the scheme involved the use of materially false statements or pretenses or the concealment of material facts.
Third, the defendant acted with an intent to defraud, that is, an intent to deceive or cheat.
And fourth, the defendant used or caused someone to use the mails to carry out or attempt to carry out the scheme or plan.
Pet. Ex. B; RT 9/15/05: Vol. II (Dkt. 168) at 110. These instructions were given without objection.
The Government also proposed a jury instruction that provided a brief definition of the term "honest services" which explained that a public agency has an intangible right to its employees' honest services, e.g., a right not to have its employees make decisions acting under a conflict of interest. see also RT 9/13/05: Vol. III (Dkt. 154) at 102 (Prosecution to the Court: "I think it's helpful and instructive for the jury to hear from the Court what 'honest services' mean in general."). The defense objected to this proposed instruction, stating that it was argumentative, suggested a lower burden for the prosecution, and was unsupported by the citations offered by the government. RT 9/13/05: Vol. III at 102. Over that objection, the following instruction regarding a "conflict-of-interest" theory of honest services fraud was given:
The right to honest servicesincludes the right of a public agency to have their employees conduct their assigned duties and make related government decisions in the best interest of the public consistent with law and conducted without regard to conflicting interests of the employee or other persons.
Pet. Ex. B; RT 9/15/05: Vol. II at 111 (emphasis added).
Petitioner also objected to the Government's proposed instruction that stated: "The Government is also not required to prove that the defendant personally secured any financial or monetary gain." RT 9/13/05: Vol. III at 105. Petitioner objected to this instruction on the grounds that it was argumentative and was proposed simply to refute a defense argument that there was no evidence of financial gain. Id. at 105-07. The Government defended its proposed instruction, stating:
We don't have to prove monetary gain. . . . It makes certain that the jury is not misled as to what we do have to prove. . . . It's important -- especially on this point, in light of the Defendant's intended argument, which is she didn't get any money -- for the jury to know: we don't have to prove that. . . . It's important for them to know that rule.
at 107. The Court agreed with the Government, stating:
It appears to me that you don't have to have a financial or monetary gain [to convict for honest services mail fraud]. You can commit the same crime simply out of friendship. . . . I don't know why the Government [is] negated from arguing also that this was simply done out of friendship.
. at 106. Over Petitioner's objection, the proposed instruction was given to the jury. Pet. Ex. B; RT 9/15/05: Vol. II at 111. This instruction explicitly told the jury that they could still convict Petitioner if they did not believe she had benefitted financially from the scheme; it thus relieved the Government entirely from having to prove that Petitioner received anything as part of the fraud.
The jury returned a general verdict convicting Petitioner on all eleven counts of honest services mail fraud and the single count of lying to a federal agency. Pet. at 9. The verdict form did not indicate that the jury found that Petitioner benefitted financially from the ...