Decided: February 8, 2013
Petitioner Bruce C. Bereano appealed the district court’s denial of his petition for a writ of coram nobis in which Bereano sought coram nobis relief to vacate his seven mail fraud convictions and to secure repayment of a fine imposed as part of his sentencing. Bereano’s petition relied on the Supreme Court’s decisions in Skilling v. United States that limited the application of the “honest services fraud” theory, one of the two theories considered by the jury that convicted Bereano of mail fraud. The Fourth Circuit agreed with the district court’s denial of Bereano’s petition and affirmed the lower court’s decision.
The basis of Bereano’s petition arose out of the trial judge’s instructions to the jury during Bereano’s trial for his mail fraud charges. The judge’s instructions stated that the jury could convict Bereano if it found him guilty under the “pecuniary fraud” or “honest services fraud” theories. Because the jury returned a general verdict on each count of fraud, there was no indication as to which theory Bereano was convicted under, and the Fourth Circuit recognized that Bereano was convicted and prosecuted under both theories.
In light of the Supreme Court’s subsequent decision in Skilling, in which the Court circumscribed the honest services fraud theory and limited it to cases involving actual bribery and kickbacks, Bereano appealed, contending that a constitutional error occurred at trial “when the district court erroneously instructed the jury that it could convict Bereano on the honest services fraud theory.” While recognizing that Bereano’s honest services fraud scheme did not involve the bribery or kickbacks required under Skilling, the district court nonetheless denied Bereano’s petition, reasoning that Bereano’s fraudulent actions implicated the pecuniary fraud theory, which was not affected by Skilling, and therefore, despite the existence of a constitution error under Skilling, the error was “harmless beyond a reasonable doubt.”
To analyze the district court’s denial of Bereano’s petition, the Fourth Circuit applied the harmless error review prescribed by the Supreme Court in Neder v. United States for cases involving constitutional errors brought about through “a failure to properly instruct on an element of an offense.” The court additional relied on its decision in United States v. Jefferson in which it “ratified the Neder harmless error standard as the law of this Circuit with respect to Skilling error,” and it applied the harmless error test described in Jefferson to the facts of the present case. Applying this test, the court concluded that there was sufficient evidence that Bereano had committed “pecuniary fraud” and that this pecuniary fraud was “necessarily accepted by the jury.” Furthermore, the court found that “no reasonable jury could have acquitted Bereano of pecuniary fraud for falsely billing his clients, but convicted him of honest services fraud for the same false billing scheme.” Therefore, despite the instructional error on the honest services fraud theory, Bereano had failed to establish the fourth prerequisite for coram nobis relief: “identification of ‘an error of the most fundamental character.’” Therefore, the court refused to grant the “‘extraordinary’ remedy of coram nobis relief” and affirmed the district court’s decision.
– Allison Hite