United States v. Riedl ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-10424
Plaintiff-Appellee,
v.  D.C. No.
CR-98-00624-ACK
BRIGITTE RIEDL,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding
Argued and Submitted
July 10, 2007—San Francisco, California
Filed August 6, 2007
Before: David R. Thompson, Pamela Ann Rymer and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
9405
UNITED STATES v. RIEDL 9407
COUNSEL
Kenneth Owen (argued), Las Vegas, Nevada, for the appel-
lant.
9408 UNITED STATES v. RIEDL
Edward H. Kubo, Jr., United States Attorney, and Rachel S.
Moriyama (argued), Assistant United States Attorney, Hono-
lulu, Hawaii, for the appellee.
OPINION
FISHER, Circuit Judge:
Brigitte Riedl was convicted of various offenses in 1999,
including five counts of money laundering in violation of 18
U.S.C. § 1956(a)(3)(B), and served her resulting 66-month
prison sentence. Although she has been released from cus-
tody, she now petitions for a writ of error coram nobis. She
contends that the money laundering statute under which she
was convicted is unconstitutionally vague, and that there was
insufficient evidence that her activities affected interstate
commerce.
We agree with the district court that Riedl’s petition must
be denied. She has failed to provide any valid reasons for
waiting so long to challenge her convictions on these grounds,
and thus plainly does not satisfy the requirements for the
highly unusual remedy of coram nobis relief. See Hirabayashi
v. United States, 828 F.2d 591, 604 (9th Cir. 1987) (adopting
four factors as predicates for coram nobis relief, including that
“valid reasons exist for not attacking the conviction earlier”).
Riedl attempts to overcome her unjustified delay by invoking
the equitable doctrine of laches, arguing that the government
has not been prejudiced by her tardiness. Cf. Telink, Inc. v.
United States, 24 F.3d 42, 45 (9th Cir. 1994) (addressing
laches in coram nobis context). We reject the notion that a
petitioner can employ laches in such a fashion. To follow
Riedl’s suggestion under the circumstances of this case would
transform the extraordinary writ of coram nobis into a free
pass for attacking criminal judgments long after they have
become final.
UNITED STATES v. RIEDL 9409
I. BACKGROUND
Riedl was convicted by a jury in November 1999 on vari-
ous counts, including five counts of money laundering in vio-
lation of 18 U.S.C. § 1956(a)(3)(B). The jury also found that
nine properties Riedl owned were involved in the money
laundering and hence subject to forfeiture. The court sen-
tenced Riedl to 66 months in prison for her offenses.
Riedl’s money laundering activities took place during a
joint “sting” operation by the Honolulu Police Department
(HPD) and the Federal Bureau of Investigation in 1997-98.
Female undercover HPD officers initially identified them-
selves to Riedl as prostitutes and rented rooms by the night in
her various properties. The officers later told Riedl that they
had begun selling drugs and were flush with cash as a result.
Riedl and the officers then came up with a scheme to convert
the purported drug money into cashier’s checks, which in turn
were used as deposits for the purchases of various properties
Riedl owned. Riedl was present each time the cashier’s
checks were procured, and she also prepared contracts for all
of the real estate transactions. At all relevant times, the offi-
cers told Riedl they were purchasing her properties with drug
money. Riedl was finally arrested, and the sting operation ter-
minated, in October 1998.
Riedl served her prison sentence and later was deported to
Austria in May 2004. She filed a petition for a writ of error
coram nobis in January 2006, more than six years after her
conviction, alleging that the money laundering statute under
which she was convicted is unconstitutionally vague, and that
the evidence at trial was insufficient to establish that her
money laundering affected interstate commerce. Her petition
explained the reasons for her failure to raise these challenges
earlier as follows:
Because Ms. Riedl was deported to Austria, her abil-
ity to find competent counsel willing to review her
9410 UNITED STATES v. RIEDL
case and pursue her legal remedies under coram
nobis took some time. Also, her 66-month incarcera-
tion period, her diminished capacity, and the fact that
the Government had seized nine of her real proper-
ties worth $2.7 million prevented her from attacking
her convictions earlier.
The district court denied Riedl’s coram nobis petition. The
court agreed with Riedl that she had no other remedy avail-
able because she had already served her sentence, and that her
money laundering convictions continued to have adverse con-
sequences. However, the court ruled that the two other
requirements for obtaining coram nobis relief — a valid rea-
son for the delay in attacking a conviction, and a fundamental
error in the underlying proceedings — were not satisfied. The
court was unpersuaded by Riedl’s explanations for her delay,
because they did not account for her failure to assert her
claims on direct appeal or through a 28 U.S.C. § 2255 peti-
tion. The court also found that the government was prejudiced
as to Riedl’s insufficient evidence claim, because some of the
evidence the government presented at trial was no longer
available, but not as to her void-for-vagueness claim, because
no retrial would be possible if the money laundering statute
were ruled unconstitutional. On the merits of the two claims,
the court held that the money laundering statute clearly identi-
fies the proscribed conduct and does not encourage arbitrary
or discriminatory enforcement; and that Riedl’s use of the
First Hawaiian Bank and an escrow service for the money
laundering created the requisite nexus with interstate com-
merce.
The district court entered its judgment in April 2006, and
Riedl timely appealed.
II. STANDARD OF REVIEW
A district court’s denial of a petition for a writ of error
coram nobis is reviewed de novo. See Matus-Leva v. United
States, 287 F.3d 758, 760 (9th Cir. 2002).
UNITED STATES v. RIEDL 9411
III. DISCUSSION
[1] Both the Supreme Court and we have long made clear
that the writ of error coram nobis is a highly unusual remedy,
available only to correct grave injustices in a narrow range of
cases where no more conventional remedy is applicable. In
United States v. Morgan, 346 U.S. 502, 511 (1954), the Court
characterized the writ as an “extraordinary remedy” that
should be granted “only under circumstances compelling such
action to achieve justice.” See also Carlisle v. United States,
517 U.S. 416, 429 (1996) (“ ‘[I]t is difficult to conceive of a
situation in a federal criminal case today where [a writ of
coram nobis] would be necessary or appropriate.’ ”) (quoting
United States v. Smith, 331 U.S. 469, 475 n.4 (1947)) (second
alteration in original). Similarly, we have described the writ
as “extraordinary,” Hirabayashi, 828 F.2d at 604, “used only
to review errors of the most fundamental character,” Matus-
Leva, 287 F.3d at 760, and “fill[ing] a very precise gap in fed-
eral criminal procedure,” Telink, 24 F.3d at 45.
[2] In Hirabayashi, consistent with the extraordinary nature
of coram nobis relief, we adopted the following framework
for deciding when the writ should be issued:
[A] petitioner must show the following to qualify for
coram nobis relief: (1) a more usual remedy is not
available; (2) valid reasons exist for not attacking the
conviction earlier; (3) adverse consequences exist
from the conviction sufficient to satisfy the case or
controversy requirement of Article III; and (4) the
error is of the most fundamental character.
Hirabayashi, 828 F.2d at 604. We have repeatedly reaffirmed
this framework in the ensuing two decades. See, e.g., United
States v. Kwan, 407 F.3d 1005, 1011 (9th Cir. 2005); Matus-
Leva, 287 F.3d at 760; Estate of McKinney v. United States,
71 F.3d 779, 781-82 (9th Cir. 1995); United States v. McClel-
land, 941 F.2d 999, 1002 (9th Cir. 1991); United States v.
9412 UNITED STATES v. RIEDL
Walgren, 885 F.2d 1417, 1420 (9th Cir. 1989). Applying the
second Hirabayashi factor, we hold that Riedl has not offered
valid reasons for her delay in attacking her convictions. Con-
sidering the equitable doctrine of laches that Riedl cites under
Telink, we hold that it does not supplant or restate the second
Hirabayashi requirement, but rather constitutes a supplemen-
tal defense that the government may invoke when a petitioner
seeks coram nobis relief.
A. Valid reasons for delay
Riedl asserts that her failure to raise her facial challenge to
the statute and her insufficient evidence argument sooner was
attributable to her deportation to Austria, her incarceration,
her diminished capacity and the forfeiture of some of her
properties. We agree with the district court that these reasons,
both individually and in combination, do not justify her delay.
[3] First, and most importantly, none of Riedl’s reasons
explains why she did not raise her void-for-vagueness or
insufficient evidence claims during trial, on direct appeal or
through a 28 U.S.C. § 2255 petition. The relevant law has
remained the same throughout this litigation, and Riedl actu-
ally filed post-verdict motions with the district court and a
direct appeal with this court, none of which mentioned her
present claims. Notably, Riedl herself concedes that nothing
prevented her from asserting her claims earlier, stating in her
briefing that she “could have possibly raised the . . . claims
in the direct appeal to the Ninth Circuit or under 28 U.S.C.
§ 2255” (her emphasis). This concession is fatal to Riedl’s
request that the extraordinary writ of error coram nobis be
issued here. See Maghe v. United States, 710 F.2d 503, 503-
04 (9th Cir. 1983) (denying coram nobis petition as untimely
where claim could have been raised earlier and there were no
sound reasons for the delay); cf. United States v. Keane, 852
F.2d 199, 202 (7th Cir. 1988) (“Claims that could have been
raised by direct appeal are outside the scope of the writ [of
coram nobis].”).
UNITED STATES v. RIEDL 9413
[4] The specific reasons that Riedl offers for her tardiness
are also unpersuasive. As the district court observed, Riedl’s
deportation argument “does not explain why she did not chal-
lenge her conviction prior to her deportation,” either during
the nine months between her release from prison and her
deportation, or while she was still imprisoned. Additionally,
even taking into account the difficulty of litigating in the
United States while residing abroad, Riedl has not accounted
for the further 20-month delay between her deportation and
the filing of her coram nobis petition. Riedl’s reference to her
incarceration period is similarly unhelpful, as prisoners are
able to challenge their convictions while in custody through
direct appeal or a petition for a writ of habeas corpus.
[5] Lastly, Riedl’s diminished capacity and the forfeiture of
some of her properties do not justify her tardiness, because
she was represented by counsel at least until November 2003,
when her direct appeal to this court was denied. The degree
of her mental impairment was in any case “limited,” as “dem-
onstrated by [her] ability to accumulate significant properties
and assets, manage her assets, and devise and implement a
sophisticated laundering scheme.” United States v. Riedl, 164
F. Supp. 2d 1196, 1201 (D. Haw. 2001). And even after the
forfeitures her net worth was estimated at $861,030 — far
more money than most criminal defendants have at their dis-
posal to challenge their convictions.
[6] Not surprisingly, no decision of this court has found
reasons similar to those put forth by Riedl as justifying coram
nobis relief. Rather, we have considered delay to be reason-
able when the applicable law was recently changed and made
retroactive, see Walgren, 885 F.2d at 1421, when new evi-
dence was discovered that the petitioner could not reasonably
have located earlier, see Hirabayashi, 828 F.2d at 605, and
when the petitioner was improperly advised by counsel not to
pursue habeas relief, see Kwan, 407 F.3d at 1013. We and our
sister circuits have rejected coram nobis petitions as untimely
when the petitioner took 25 years to challenge an undesirable
9414 UNITED STATES v. RIEDL
army discharge that he had not previously tried to upgrade,
see Maghe, 710 F.2d at 503-04, when there was a seven-year
delay during which the petitioner did not exercise due dili-
gence, see Klein v. United States, 880 F.2d 250, 254 (10th
Cir. 1989), and when the petitioner waited 16 years to re-
litigate a claim that had been raised and then dropped on
direct appeal, see United States v. Correa-De Jesus, 708 F.2d
1283, 1284-86 (7th Cir. 1983). Riedl’s situation is plainly
more analogous to Maghe, Klein and Correa-De Jesus than to
Walgren, Hirabayashi and Kwan. Like the petitioners in the
former group of cases, she has failed to offer any legitimate
explanations for not raising her challenges to her convictions
sooner or through more usual channels.
[7] We therefore hold that Riedl has failed to demonstrate
that “valid reasons exist for not attacking the conviction[s]
earlier.” Hirabayashi, 828 F.2d at 604. Accordingly, the dis-
trict court properly denied her coram nobis petition.
B. Laches
Riedl argues, however, that she was not required to provide
valid reasons for her delay until the government first estab-
lished it would be prejudiced by the late assertion of her void-
for-vagueness and insufficient evidence claims. In her view,
“[t]hat a petitioner establish valid reasons for not attacking the
conviction earlier is an element of a laches rebuttal . . . .
[U]nless and until the Government demonstrates laches, the
coram nobis petitioner is not required to state valid reasons
for not attacking the conviction earlier.” We disagree. Riedl’s
approach would largely eviscerate the gate-keeping frame-
work Hirabayashi articulated and open the door to inexcus-
ably late claims. The cases Riedl cites do not compel granting
defendants such an easy path to the extraordinary writ of
coram nobis.
[8] As a preliminary matter, Riedl is correct that laches
operates differently from the second coram nobis requirement.
UNITED STATES v. RIEDL 9415
Under the Hirabayashi framework, the burden of proof is on
the petitioner to offer valid reasons for the delay. See id.
Under laches, on the other hand, “the government first must
make a prima facie showing of prejudice . . . . If the govern-
ment meets that burden, the burden of production of evidence
then shifts to the petitioners to show either that the govern-
ment actually was not prejudiced or that the petitioner exer-
cised reasonable diligence in filing the claim.” Telink, 24 F.3d
at 47; see also Couveau v. Am. Airlines, Inc., 218 F.3d 1078,
1083 (9th Cir. 2000) (laches requires “a defendant [to] prove
both an unreasonable delay by the plaintiff and prejudice to
itself”). It is also true that some of our decisions have cited
laches in their discussions of coram nobis petitions’ timeli-
ness. See, e.g., Kwan, 407 F.3d at 1013-14; Telink, 24 F.3d at
45-48; Hirabayashi, 828 F.2d at 605.
Nevertheless, Riedl is incorrect that coram nobis relief is
available as long as it is not barred by laches. Our decisions
that have considered laches have done so only because the
government invoked the doctrine as a supplemental defense.
Those decisions have not purported to overrule the Hira-
bayshi framework, which places the initial burden of justify-
ing delay squarely on the petitioner, nor as three-judge
opinions could they have done so. Indeed, in Hirabayashi
itself we analyzed the applicability of laches only because
“[t]he government argue[d] that the district court should have
dismissed the petitioner’s claim on the ground of laches,” 828
F.2d at 605 (emphasis added), and in Kwan we stated that
“[i]f a respondent [i.e., the government] seeks dismissal of a
coram nobis petition on the ground of laches, the respondent
bears the burden of showing [it] was prejudiced by the peti-
tioner’s delay,” 407 F.3d at 1013 (emphasis added). Likewise,
it was the government that relied on laches in Telink — as did
the district court in denying the coram nobis petition. See
Telink, 24 F.3d at 44 (“The district court concluded that the
petitioners’ claim was barred by laches.”); Brief of United
States at 23-25, Telink, 24 F.3d 42 (No. 93-50034), 1993 WL
9416 UNITED STATES v. RIEDL
13101350 (invoking doctrine of laches and arguing that “the
Government had made a prima facie showing of prejudice”).
Moreover, none of our previous decisions involved any
conflict between the second coram nobis requirement and
laches. In Hirabayashi and Kwan, for instance, the petitioners
offered valid reasons for their delay and there was no showing
by the government of prejudice; therefore both the second
coram nobis requirement and laches supported a holding of
timeliness. In Telink, on the other hand, petitioners failed to
exercise reasonable diligence and the government was thereby
prejudiced; therefore both the second coram nobis require-
ment and laches supported a denial of the petition as
untimely.
[9] Here, however, it is the petitioner Riedl who — unable
to meet Hirabayashi’s reasonable delay requirement — seeks
to use laches to shift onto the government an initial burden to
show prejudice, and thus to make her untimeliness irrelevant.
Even under a laches analysis, Riedl’s insufficient evidence
claim would be barred because, as the district court found, the
unavailability of some of the evidence and witnesses from
Riedl’s trial would hamper the government’s ability to prove
that her money laundering affected interstate commerce. See
Telink, 24 F.3d at 48. On the other hand, if Riedl’s void-for-
vagueness challenge to the money laundering statute were to
succeed, the government would not be prejudiced, because it
would be unable to retry her at all. But see Foont v. United
States, 93 F.3d 76, 80 (2d Cir. 1996) (noting “government’s
interest in the finality of convictions”). In this context —
which requires us for the first time to confront the latent ten-
sion between the second coram nobis requirement and laches
— we reaffirm the Hirabayashi framework and hold that the
burden remained on Riedl to demonstrate that her delay was
reasonable. Given that her delay was unreasonable, she cannot
now bring her untimely facial challenge simply because the
government is unable to show prejudice as to a new trial. As
the Second Circuit persuasively reasoned in comparable cir-
UNITED STATES v. RIEDL 9417
cumstances in Foont, “the proper standard by which the exis-
tence of ‘sound reasons’ should be measured is [not] that of
laches . . . . The critical inquiry . . . is whether the petitioner
is able to show justifiable reasons for the delay.” Id. (quoting
Morgan, 346 U.S. at 512).
IV. CONCLUSION
[10] We affirm the district court’s denial of Riedl’s petition
for a writ of error coram nobis. Riedl has offered no valid rea-
sons for her delay in attacking her convictions, and thus is
ineligible for coram nobis relief. It is irrelevant that the gov-
ernment has not established prejudice as to Riedl’s void-for-
vagueness claim because the doctrine of laches only becomes
applicable once a petitioner has satisfied the second coram
nobis requirement, which Riedl has not.
AFFIRMED.