United States v. Kerkman , 200 F. App'x 578 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0776n.06
Filed: October 18, 2006
No. 05-2194
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CHARLES H. KERKMAN, )
)
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
UNITED STATES OF AMERICA, ) THE WESTERN DISTRICT OF
) MICHIGAN
Respondent-Appellee. )
)
)
Before: GIBBONS and ROGERS, Circuit Judges; HOLSCHUH, District Judge.*
JOHN D. HOLSCHUH, District Judge. Charles Kerkman appeals the district court’s
denial of his petition for a writ of error coram nobis. Kerkman had asked the court to vacate his
1986 conviction for various fraud offenses. The district court held that Kerkman’s petition was
barred by the doctrine of laches. In the alternative, the district court held that the petition lacked
merit. Kerkman has appealed on both grounds. Because we agree that Kerkman’s petition is
barred by the doctrine of laches, we affirm.
I.
In 1979, Charles Kerkman and Robert Fischl formed two companies that entered into a
*
The Honorable John D. Holschuh, United States District Judge for the Southern District
of Ohio, sitting by designation.
multimillion-dollar contract with the Michigan Department of Transportation (MDOT). The
companies were to market, build, and operate an integrated tug-barge system to transport rail and
truck traffic across Lake Michigan. In connection with that project, Kerkman purchased tugboat
engines from a German marine company, Krupp MAK Maschinenbau GmbH (MAK). He was
familiar with MAK from his previous work in the marine industry. MDOT eventually began to
suspect that MAK paid Kerkman an illegal kickback on the sale of the tugboat engines, and an
investigation ensued.
On January 30, 1984, Kerkman and Fischl were indicted on numerous charges of wire
fraud, mail fraud, transportation in interstate commerce of checks which had been taken by fraud,
conspiracy to commit mail and wire fraud, conspiracy to impede the Internal Revenue Service,
and submitting false tax returns. According to the government, Kerkman solicited and received
an illegal kickback from MAK in the amount of $232,719.45, which was to be added to the
purchase price of the engines and absorbed by the State. The government also claimed that
Kerkman falsely reported this kickback as a “commission” on his company’s tax return. At trial,
Kerkman argued that the $232,719.45 was not a kickback, but equitable compensation for his
previous assistance in helping MAK break into the North American market through numerous
customer referrals.
Kerkman’s first trial ended in a mistrial. He was retried, and on November 11, 1986 a
jury convicted him on all but three counts of wire fraud. He was sentenced on January 8, 1987 to
two years in prison and five years probation. He was also ordered to pay a $10,000 fine and to
make restitution in the amount of $232,719.45. This court affirmed his conviction and sentence.
See United States v. Kerkman, 866 F.2d 877 (6th Cir. 1989). In 1991, Kerkman filed a motion to
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vacate his sentence pursuant to 28 U.S.C. § 2255. The district court denied his habeas petition
and this court affirmed. See United States v. Kerkman, No. 97-1786, 1998 WL 786964 (6th Cir.
Oct. 29, 1998).
In January of 2004, Kerkman filed a petition for a writ of error coram nobis. He argued
that his conviction should be vacated and a new trial ordered because the government had
intentionally withheld certain exculpatory evidence at trial, in violation of Brady v. Maryland,
373 U.S. 83 (1963). The evidence allegedly withheld included pages 94-100 of the grand jury
testimony of MAK representative Guenther Kuehl. Kerkman claimed that these missing pages
corroborated his claim that the payment from MAK was a commission for sales generated by his
previous customer referrals. Kerkman also alleged that the government wrongfully withheld
grand jury testimony of Special Agent James Dahl of the United States Postal Service about
Dahl’s interviews with witnesses who testified about Kerkman’s customer referrals to MAK.
Kerkman argued that there was a reasonable probability that he would have been acquitted had
the government disclosed these portions of the grand jury transcripts.
On August 8, 2005, the district court denied Kerkman’s petition on two grounds. First,
the court found that the petition was barred by the doctrine of laches. The court noted that
Kerkman has had the transcripts at issue in his possession since 1994 when he was permitted to
copy forty boxes of documents in preparation for an evidentiary hearing held in connection with
his habeas petition. Kerkman nevertheless made no effort to amend his habeas petition, which
was still pending at that time. Instead, he waited until 2004 to file his petition for a writ of error
coram nobis, nearly ten years after he had obtained possession of the transcripts and six years
after this court had affirmed the district court’s denial of his habeas petition. The district court
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found that this was an unreasonable delay and that Kerkman had no “sound justification for
failing to pursue this claim earlier.” In the alternative, with respect to the alleged Brady
violation, the district court held that Kerkman had failed to establish that there was a reasonable
probability that the outcome of the trial would have been different had the missing transcript
pages been provided prior to trial.
This appeal followed. Kerkman asks this court to vacate his 1986 conviction and enter an
Order granting a new trial. He asserts two grounds on appeal. First, he argues that the district
court erred in denying his petition on the basis of laches. Second, he argues that the district court
erred in finding that the grand jury transcripts withheld by the government were not material to
his defense.
II.
We review the district court’s legal conclusions de novo but review findings of fact for
clear error. Blanton v. United States, 94 F.3d 227, 230 (6th Cir. 1996).
III.
The All Writs Act, 28 U.S.C. § 1651(a), empowers a federal court to issue a writ of error
coram nobis. See United States v. Morgan, 346 U.S. 502, 506 (1954). As explained in Blanton,
the writ is used to vacate the illegal sentence or conviction of a petitioner who is no longer in
custody. 94 F.3d at 231. Even though a sentence has been fully served, “the results of the
conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be
affected.” Morgan, 346 U.S. at 512-13. In this case, Kerkman seeks to have his conviction
vacated because he wants to hunt game with family and friends, but as a convicted felon, it is
illegal for him to possess a firearm.
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A petitioner seeking a writ of error coram nobis, however, has a heavy burden. It is “an
extraordinary writ, used only to review errors of the most fundamental character – e.g., errors
rendering the proceedings themselves invalid.” United States v. Johnson, 237 F.3d 751, 755 (6th
Cir. 2001). It can be granted only if the petitioner shows “(1) an error of fact; (2) unknown at the
time of trial; (3) of a fundamentally unjust character which probably would have altered the
outcome of the challenged proceeding if it had been known.” Id. Kerkman contends that the
government’s failure to produce exculpatory portions of the grand jury testimony of Kuehl and
Dahl rendered his trial fundamentally unfair.
A.
On appeal, Kerkman first challenges the district court’s conclusion that his petition was
barred by the doctrine of laches. Kerkman argues that the writ of error coram nobis sets forth no
time restraints but simply requires a “continuing disability.” While it is true that there is no
specific time frame within which a petition must be filed, a petitioner must nevertheless use due
diligence. As the Ninth Circuit explained in Telink, Inc. v. United States, 24 F.3d 42 (9th Cir.
1994):
Because a petition for writ of error coram nobis is a
collateral attack on a criminal conviction, the time for filing a
petition is not subject to a specific statute of limitations. Rather
the petition is subject to the equitable doctrine of laches. Unlike a
limitations period, which bars an action strictly by time lapse,
laches bars a claim if unreasonable delay causes prejudice to the
defendant.
Id. at 45 (internal citations and footnotes omitted).
Like the Ninth Circuit, the Sixth Circuit has held that the doctrine of laches may bar a
petition for a writ of error coram nobis. See Blanton, 94 F.3d at 231; Spaulding v. United States,
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155 F.2d 919, 921 (6th Cir. 1946). As we noted in Blanton, “sound policy dictates that coram
nobis claims be brought as early as possible to prevent the suffering imposed by illegal
convictions and to prevent the government from being prejudiced in its efforts to reprosecute
meritorious cases.” Blanton, 94 F.3d at 231.
The district court did not err in finding that Kerkman’s petition was barred by the doctrine
of laches. Kerkman admits that he has had the allegedly withheld transcripts in his possession
since 1994 but waited until 2004 to file his petition. The district court correctly found that
Kerkman’s ten-year delay was unreasonable. See United States v. Nyhuis, 40 Fed. Appx. 80, 81
(6th Cir. 2002) (“A ten-year delay does not constitute an exercise of reasonable diligence.”). See
also Craven v. United States, 26 Fed. Appx. 417, 419 (6th Cir. 2001) (finding a seven-year delay
unreasonable).
Kerkman argues that he was unaware that he had the previously-withheld transcripts in
his possession. He claims that they were buried among forty boxes of documents that were
hurriedly copied in 1994 while his attorneys were preparing for an evidentiary hearing in his
habeas action. According to Kerkman, his attorneys did not discover the transcripts, or
understand their significance, until 2001. This argument, however, is directly contradicted by the
fact that Kerkman’s attorney cited pages 94 and 95 of Kuehl’s grand jury transcript -- two of the
pages that were allegedly previously withheld -- in the reply brief he filed in January of 1998 in
connection with Kerkman’s appeal of the district court’s denial of the habeas petition. Moreover,
Kerkman’s current attorney raised the same issues in another petition for a writ of error coram
nobis filed in 2001 on behalf of Kerkman’s co-defendant, Fischl. Kerkman makes no effort to
explain why he waited an additional three years to file his own petition.
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Not only was Kerkman’s ten-year delay unreasonable, but it is clear that the government
would be severely prejudiced if the court were to vacate Kerkman’s conviction and order a new
trial. Kerkman was convicted nearly twenty years ago and his habeas proceedings were
concluded nearly eight years ago. The government notes that most of the relevant documents
have already been returned to their rightful owners or disposed of according to governmental
record retention policies. Under the circumstances presented here, we conclude that the district
court did not err in finding Kerkman’s petition barred by the equitable doctrine of laches.
B.
Because we find that the district court did not err in holding that Kerkman’s petition was
barred by the doctrine of laches, we do not reach the issue of whether the allegedly withheld
pages of the grand jury transcripts were, in fact, material to Kerkman’s defense.
IV.
For the reasons set forth above, we affirm the district court’s denial of Kerkman’s petition
for a writ of error coram nobis.
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