Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 1 of 18

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1 Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 1 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION UNITED STATES OF AMERICA, : : Plaintiff, : CASE NO: 8:05-cr-475-T-27TGW : v. : : THOMAS SPELLISSY, et al., : : Defendants. : / JOINT PETITION FOR WRIT OF ERROR CORAM NOBIS Defendants, Thomas Spellissy and Strategic Defense International, Inc. (SDI), through their undersigned counsel and pursuant to 28 U.S.C. 1651(a), the All Writs Act, hereby petition for writs of error coram nobis regarding their convictions on Count One of the Indictment, which alleges conspiracy to commit bribery, wire fraud, and honest-services fraud. The basis of this petition is that, in Skilling v. United States, 561 U.S., 130 S. Ct (2010), the United States Supreme Court recently held that the conduct of which the defendants were convicted in Count One does not constitute a criminal offense under 18 U.S.C & 1346, which proscribe wire fraud and honest-services fraud, respectively. A. Introduction Mr. Spellissy has exhausted his direct appellate rights as well as the collateral remedies 1 provided by 28 U.S.C Moreover, his supervised release term is expired, and therefore he is not currently serving any portion of the sentence imposed by this Court. However, he continues to suffer the effects of his conviction on Count One, which include the diminution of 1 On February 11, 2010, this Court granted Mr. Spellissy s motion for early termination of supervised release, effective immediately. (Dkt. 215).

2 Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 2 of 18 his military pension, harm to his reputation, loss of various civil rights including his rights to vote, hold office, and carry a weapon, and his exclusion, as a convicted felon, from participating in curricular and extracurricular activities normally available to parents at his children s schools. Although Mr. Spellissy was indicted and convicted on five counts, this Court previously granted his post-trial motion for judgment of acquittal as to Counts Two and Three, which alleged that Mr. Spellissy committed bribery, and granted a new trial on Counts Four and Five, which alleged substantive wire fraud offenses. Thus, the only remaining count of conviction is Count One, an alleged conspiracy to commit bribery, wire fraud, and honest-services fraud. See Dkt. 85 (judgment on Count One for defendant Spellissy); Dkt. 86 (judgment on Count Two for defendant SDI). The basis of this petition for writ of error coram nobis is that the United States Supreme Court s recent decision in Skilling establishes that the conduct of which defendants were convicted in Count One does not constitute a crime. Therefore, defendants are entitled to issuance of a writ of error coram nobis, vacating their convictions on Count One. B. The Writ of Error Coram Nobis In United States v. Morgan, 346 U.S. 502 (1954), the Supreme Court explained that the authority for federal courts to issue writs of error coram nobis originates in the All Writs Act, 28 U.S.C Id. at 506. The Morgan Court rejected the argument that the relief provided by 28 U.S.C should be extended to cover the entire field of remedies in the nature of coram nobis in federal courts. Id. at 510. Instead, the Morgan Court explicitly held that district courts enjoy the power to provide the distinct remedy of a writ of error coram nobis. Id. at 511. The Morgan Court cautioned that, Continuation of litigation after final judgment and exhaustion of any statutory right of review should be allowed through this extraordinary remedy only under 2

3 Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 3 of 18 circumstances compelling such action to achieve justice. Id. Likewise, coram nobis includes errors of the most fundamental character. Id. at 512 (quotation omitted). However, with no other remedy... being available and [the petitioner having] sound reasons for failure to seek appropriate earlier relief, this motion in the nature of the extraordinary writ of coram nobis must be heard by the federal trial court. Otherwise, a wrong may stand uncorrected which the available remedy would right. Id. (emphasis added). The Morgan Court noted that the results of a conviction, although the sentence has been served, persist, as a defendant s civil rights may be affected. Id. at The factual and legal circumstances of this case are very similar to United States v. Peter, th 301 F. 3d 709 (11 Cir. 2002). The Peter court reversed a district court s order denying a petition for writ of error coram nobis. In Peter, the defendant pled guilty to one count of RICO conspiracy, the sole predicate act of which was mail fraud in violation of 18 U.S.C Id. at 711. The factual basis for the mail fraud allegation was that the defendant fraudulently obtained property in the form of an alcohol license. Id. In Cleveland v. United States, 531 U.S. 12 (2002), however, the Supreme Court subsequently held, after Peter s conviction became final, 2 that such licenses do not constitute property under 18 U.S.C Id. The Peter court thus held that the facts to which Peter pled guilty did not constitute a crime under Cleveland, and [d]ecisions of the Supreme Court construing substantive federal criminal statutes must be given retroactive effect. Id. The Peter court explained that a writ of error coram nobis is available to vacate a 2 The Skilling Court noted, coincidentally, that the Cleveland Court held that, in enacting 18 U.S.C the statute at issue in Count One - Congress intended to encompass the intangible right of honest services, which had been rejected in McNally v. United States, 483 U.S. 350 (1987). Skilling, 130 S. Ct. at 2927, citing Cleveland, 531 U.S. at

4 Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 4 of 18 conviction when the petitioner s sentence has concluded and he is no longer in custody. Id. This relief continues to be available because the results of a conviction persist even after the sentence has been served. Id. Because of the important countervailing interest of finality, however, the writ is limited to remedying errors of a fundamental character. Id. at 712. The Peter court reasoned that jurisdictional error is one example of fundamental error that provides a basis for coram nobis relief. Id. at 715. A jurisdictional error occurs when a defendant is convicted of a non-offense, that is, of specific conduct that... was outside the sweep of the charging statute. Id. at As the decision in Cleveland meant that the defendant was convicted of conduct that was subsequently ruled non-criminal, so too does Skilling mean that Mr. Spellissy was convicted of conduct that was later ruled non-criminal and therefore he is entitled to coram nobis relief. C. Skilling v. United States In Skilling, the defendant was charged with conspiracy to commit securities and wire fraud, and more specifically, with depriving others of the intangible right of honest services under 18 U.S.C Skilling, 130 S. Ct. at The Skilling Court reasoned that 18 U.S.C honest-services fraud is limited only to bribery and kickback schemes. Id. So limited, the statute defines honest-services fraud so as to eliminate a conflict-of-interest theory of criminal liability. Id. at The Skilling Court s objective was to define the meaning of the statutory phrase intangible right of honest services. Id. at In essence, the Court defined the statute as limited to cases involving fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who had not been deceived. Id. To preserve the statute without transgressing constitutional limitation, the Skilling Court continued, we now 4

5 Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 5 of 18 hold that 1346 criminalizes only the bribe-and-kickback core of the [prior] case law. Id. at 2931 (emphasis in original); see also id. at 2931, n. 42 ( Congress, we believe, would have drawn the honest-services line, as we do now, at bribery and kickback schemes. ) In imposing this limitation upon 18 U.S.C. 1346, the Skilling Court explicitly rejected the government s argument that the statute criminalizes fraud based on a conflict of interest. Id. at The Skilling Court expressly rejected the government s theory of honest-services fraud in Count One of this case in the following passage: If Congress were to take up the enterprise of criminalizing undisclosed self-dealing by a public or private employee, Brief for United States, 43, it would have to employ standards of sufficient definiteness and specificity to overcome due process concerns. The Government proposes a standard that prohibits the taking of official action by the employee that furthers his own undisclosed financial interests while purporting to act in the interests of those to whom he owes a fiduciary duty, so long as the employee acts with a specific intent to deceive and the undisclosed conduct could influence the victim to change its behavior. Id. at See also id., at That formulation, however, leaves many questions unanswered. How direct or significant does the conflicting financial interest have to be? To what extent does the official action have to further that interest in order to amount to fraud? To whom should the disclosure be made and what information should it convey? These questions and others call for particular care in attempting to formulate an adequate criminal prohibition in this context. Id. at 2933, n. 44. According to the Court, In light of the relative infrequency of conflict-ofinterest prosecutions in comparison to bribery and kickback charges, and the intercircuit inconsistencies they produced, we conclude that a reasonable limiting construction of 1346 must exclude this amorphous category of cases. Id. at Even so, Skilling also holds that harmless error analysis applies, and remanded for that purpose. Id. at According to the Court, 5

6 Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 6 of 18 Because the indictment alleged three objects of the conspiracy - honest-services wire fraud, money-or-property wire fraud, and securities fraud - Skilling s conviction is flawed. See Yates v. United States, 354 U.S. 298 (1957)(constitutional error occurs where a jury is instructed on alternative theories of guilt and returns a general verdict that may rest on a legally invalid theory). This determination, however, does not necessarily require reversal of the conspiracy conviction; we recently confirmed, in Hedgpeth v. Pulido, 555 U.S., 129 S. Ct. 24, 171 L. Ed. 2d 927 (2008)(per curium), that errors of the Yates variety are subject to harmless-error analysis. The parties vigorously dispute whether the error was harmless. Compare Brief for the United States 52 ( [A]ny juror who voted for conviction based on [the honestservices theory] also would have found [Skilling] guilty of conspiring to commit securities fraud. ) with Reply Brief 30 (The Government cannot show that the conspiracy conviction rested only on the securities-fraud theory rather than the distinct, legallyflawed honest-services theory. ) We leave this dispute for resolution on remand. Id. To demonstrate that Skilling error is harmless, the government bears the burden of proving beyond a reasonable doubt that the jury would have convicted absent the error. Neder v. United States, 527 U.S. 1, 7-15 (1999). The error is not harmless if there is a reasonable probability that the [error ] complained of might have contributed to the conviction. Yates, 500 U.S. at 403, quoting Chapman v. California, 386 U.S. 18, 24 (1967). In addition, harmlessness analysis must account for the customary presumption that jurors follow instructions and, specifically, that they consider relevant evidence on a point in issue when they are told that they must do so. Yates, 500 U.S. at 404. D. Procedural History of Case The following summary addresses the pertinent procedural history of this case: 1. Count One is an 18 U.S.C. 371 conspiracy charge alleging the following objectives: 6

7 Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 7 of 18 1) to defraud the United States (no statute cited); and 2) to commit offenses against the United States, including bribery (18 U.S.C. 201(b)(1)), wire fraud (18 U.S.C. 1343), and honest-services fraud (18 U.S.C. 1346)(Dkt. 1 at 1-6). (Dkt. 1 is appended as Exhibit 1.) 2. The jury instructions for Count One read: [W]ith regard to the alleged conspiracy, the indictment charges that the Defendants conspired to bribe a public official and to commit wire fraud. It is charged, in other words, that they conspired to commit two separate, substantive crimes or offenses. In such a case a case it is not necessary for the Government to prove that the Defendants under consideration willfully conspired to commit both of those substantive offenses. It would be sufficient if the Government proves, beyond a reasonable doubt, that the Defendants willfully conspired with someone to commit one of those offenses, but, in that event, in order to return a verdict of guilty, you must unanimously agree upon which of the two offenses the Defendant conspired to commit. 3 (Dkt. 58 at 11)(emphasis in original) (Dkt. 58 is appended as Exhibit 2.) 3. The jury instructions further state that the alleged conspiracy in Count One, in addition to involving the commission of offenses against the United States - namely bribery and wire fraud - also charged conspiracy to defraud the United States. Dkt. 58 at 12. The instructions then provided the elements of bribery under 18 U.S.C. 201(b)(1). Id. at Finally, the instructions turned to the fraud allegations, stating: Title 18, United States Code, Sections 1343 and 1346, make it a federal crime or offense for anyone to use interstate wire communications facilities in carrying out a scheme to fraudulently deprive another of an intangible right of honest services. Id. at 16. This Court instructed the jury that the first element of the offense is [t]hat distinction. 3 Despite this instruction, the verdict forms (Dkts. 62 & 63) did not provide for such a 7

8 Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 8 of 18 the defendants knowingly devised or participated in a scheme to fraudulently deprive the public of the intangible right of honest services.... Id. 4. In its initial closing argument, the government explained that there are two prongs in Count One, the conspiracy count, namely conspiracy: 1) to defraud the United States, and 2) to commit offenses against the United States, [a]nd those offenses are the bribery as well as wire fraud, which, again, sounds very similar, but scheme to defraud the United States of its fair services and honest services. (Dkt. 111 at 802) (Dkt. 111 is appended as Exhibit 3). 5. The government specifically argued in reference to the first prong of Count One, that is, the alleged conspiracy to defraud the United States, that Mr. Spellissy defrauded the United States because the federal government must rely on its employees being honest and doing what the government is requiring. Not that they are padding their pockets on some separate deal on the side. [N]ot doing what the government is asking him to do, but asking what other people are doing. Dkt. 111 at 801. Further, the government argued, [Y]ou can t accept money on the side and serve two masters, because you don t know which one you re serving. You re not doing both, and that s what the conspiracy to defraud the United States is all about. Id. at In its rebuttal closing argument, the government argued similarly that, On the wire fraud, [the issue] is whether or not a scheme to defraud occurred to deprive the public of their right to the honest services of their employees. Dkt. 111 at The jury issued general verdicts on Count One, finding Mr. Spellissy and SDI guilty of the offense of conspiracy to defraud the United States and to commit offenses against the United States, in violation of 18 U.S.C (Dkts. 62 & 63)(Dkts. 62 & 63 are appended as Exhibits 4 and 5, respectively.) 8. The government adhered to the honest-services fraud theory in the subsequent 8

9 Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 9 of 18 hearing on the post-trial motions. It is clear that the government, the defendants, and this Court focused on the issue of the sufficiency of evidence to prove honest-services fraud, and no other theory of fraud, or bribery, to sustain the guilty verdicts on Count One. Even more specifically, the government relied on the same conflict-of-interest theory of honest-services fraud that the Skilling Court rejected. 9. For example, this Court repeatedly observed that the issue in Count One is whether there is substantial evidence that there was a conspiracy to deprive the government of the honest services of Bill Burke. (Dkt. 113 at 12.) (Dkt. 113 is appended as Exhibit 6.) More specifically, the issue was whether a deprivation of honest services occurred because Burke labored under a conflict of interest. This Court thus inquired: Is the jury not entitled to infer from [the s] that there was a conspiracy to deprive the government of the honest services of Bill Burke by, of course, putting him in a position of conflict of interest even if the work was performed for the $4500? That s the question. Id. at 13 (emphasis added). This Court inquired further: Can t you conspire to defraud the United States of honest services even if you pay somebody quid pro quo, that is, for time and services performed? Id. at 20. This Court also noted: Clearly, the jury was instructed appropriately that the [wire] fraud could be supported by the deprivation of the government of the intangible right of honest services... That doesn t require any tangible exchange or value; simply, as I think the government argued, Burke was in a conflict of interest position by - even if you accept the proposition that he performed the services at the rate of $ an hour. Id. at 21 (emphasis added). Addressing defense counsel, this Court similarly stated: You have to agree reluctantly that in a conspiracy to commit [wire] fraud, the offense can be committed merely by employing a 9

10 Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 10 of 18 government agent or employee in a position of conflict, even though the dollars are, for all interests and purposes, legitimate. Id. at 22 (emphasis added). Further, this Court noted that, [The government] has just gone through three s that I would suggest prove the existence of a conspiracy, that is, to deprive the government of the intangible right of honest services of Bill Burke. Id. at 35. This Court later observed, So the Count One sufficiency hinges, if [the government is] relying on these s, and I know that s not the only thing you rely on, on whether or not they establish the existence of an agreement either to commit [wire] fraud or commit a bribery. I think you can tell by my questions that I don t think your bribery conspiracy is the strongest... theory, but the jury found one or the other. They didn t have to find both. Id. at This Court and the government further discussed the conflict-of-interest nature of the honest-services fraud allegations: THE COURT: MR. O NEILL: THE COURT: MR. O NEILL: With respect to the Counts One, Four, and Five, outline for me, Mr. O Neill, why these courts should survive the Rule 33 motion. Your Honor, those counts are conspiracy to defraud the United States. The evidence is actually unequivocal that Mr. Burke was a Centel employee working at SOCOM who did not have any authorization to work outside, who did not seek approval, whose supervisors did not know that he had a business relationship. All right. Thank you. Conflict of interest. Okay. Dkt. 113 at (emphasis added). 10

11 Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 11 of In response to this Court s request to summarize how the s in evidence support the charge in Count One, the government asserted that this evidence [s]hows that Mr. Burke is not giving his honest services and providing his honest services to his employer, that being Centel, and through Centel, SOCOM [Special Operations Command], but instead, he s doing it on behalf of Mr. Spellissy. And we have the payments to prove that, Your Honor. That in a nutshell is the government s theory on the conspiracy to defraud the United States. Dkt. 113 at The Court and the government later engaged in the following colloquy: THE COURT: MR. O NEILL:...The question in this case, I think with respect to Burke, is even if he didn t get permission to do what he was doing, that is, performing $4500 worth of work for Spellissy, it has to be a fraud and, that is, that the government would have to have been deprived fraudulently of Burke s honest services. What s the evidence of that? I think you could see it once again, Your Honor, I hate to belabor the same point, but in these s, he talks consistently about providing support for Mr. Spellissy on these projects, projects specifically with SOCOM in which he says he s going to you know, such as Government s Exhibit 12, SDI is the door to SOCOM, FCT and SOCOM SP. Mr. Burke is saying this. He doesn t anticipate the government will be seeing his s. He doesn t anticipate that the government will have these in their possession. He s talking about working for Mr. Spellissy on matters affecting 11

12 Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 12 of 18 SOCOM while he s an employee of Cental working for SOCOM. That on its face is a fraud, Your Honor. That on its face is a deprivation of honest services. I mean, if you look at number 28, Government s Exhibit 28, where he recommends SDI, if no other documents shows he is no longer working with the best interest of the United States Government but, instead, working with the best interest of SDI because he s being compensated by SDI. It s clear from these s throughout them, Your Honor, he s looking for a job. He said that in his testimony. He wants Mr. Spellissy to hire him, and he s doing his best to placate his future employer. Dkt. 113 at During the hearing, the government, the defendant, and this Court distinguished honest-services fraud from bribery. According to the government, [T]here s a big difference in a Rule 33 argument on the bribery and the conspiracy to defraud the United States. They are two very different crimes.... Dkt. 113 at 42. Namely, [T]he bribery counts require... a quid pro quo. And if you totally remove Mr. Burke s testimony, it s arguable that you cannot show quid pro quo. I m not one hundred percent sure of that. Id. at The government and this Court observed: MR. O NEILL: On the bribery, it s - - the jury would have to infer that the 45 hundred dollar payment was for work Mr. Burke was doing for Mr. Spellissy. And so that s just it s a tougher bribery is just a tougher crime to prove because of the quid pro quo element

13 Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 13 of 18 COURT: I think that s an appropriate position for the government to take in light of what happened at trial. Id. at 44. According to the government, And that s what a bribery is all that s why on the conspiracy I think it s so much easier to say, absolutely, there s plenty of evidence because you re setting the stage for someone not to give the government the honest services that the government deserves. And you re setting this sort of stage. With bribery, it has to be much more specific. You have to tie the payments to specific matters. Do I believe the s make it? Yes. Do I think it s a close call? Yes, on the bribery charge, two and three. Id. at At the conclusion of the hearing, this Court found that the s were sufficient to allow a reasonable jury to find a conspiracy to deprive[ ] the United States of the honest services of Bill Burke, that is, [wire] fraud. Dkt. 113 at 60. In its subsequent written order, the court ruled as to Count One that the defendants agreed to commit the offense of [wire] fraud, that is, deprive the United States of the intangible right of Williams Burke s honest services. (Dkt. 72 at 2.)(Dkt. 72 is appended as Exhibit 7.) 15. Reviewing the s exchanged by Burke and Spellissy, this Court reasoned that [t]hese s evidence an agreement to engage in a business, which the jury found and could reasonably find would have deprived the United States of the honest services of Bill Burke, that is, mail fraud. Dkt. 113 at 60. However, this Court continued, With respect to Counts Two and Three, the bribery counts, the government acknowledges, as I think is laudable, that the jury was required to infer certain things in order to connect the payment to Bill Burke to any preferential treatment of an SDI contractor or 13

14 Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 14 of 18 Id. at client.... With respect to Counts Two and Three, that is, indeed, problematic because Bill Burke testified unequivocally that he worked for the $4500 invoiced and received a 1099, and there was no fraud or preferential treatment involved. He simply performed services and was paid for it. There s no direct evidence to the contrary. The s say what they say. We have invoices, we have a discussion about preparing the invoices, we have a public transmission of a check and a pubic transmission of a What s lacking in the government s presentation of the case and what supports my finding that no reasonable juror could have found proof beyond a reasonable doubt as to Counts Two and Three is the connection... between the rendering of those services and the payment for those services and any preferential treatment. The government has no evidence that Mr. Burke did not perform the services he described. If I assume the truth of the evidence the government presented,..., then that was a payment for services rendered, not for the purpose of influencing Bill Burke or giving preferential treatment on behalf of an SDI client. 16. This Court also granted the defendants Fed. R. Crim. P. 33 motions for new trial as to Counts Four and Five, the substantive wire fraud counts. Dkt. 113 at 64. The government conceded that, although the payments of $3,000 and $1,500 were for invoiced services that Burke provided SDI, the government s allegations were that the payments were bribes nonetheless. Id. at 65. Yet, this Court reasoned, the problem is that, in so alleging, the government simply returned to the bribe allegations of Counts Two and Three, which were already subject to judgments of acquittal. Id. According to this Court, And, of course, the bribery allegations and to the extent the mail fraud counts rely on these same payments, there are just too many inferences upon inferences drawn for a theory, the government s theory, based on the s, but without supporting testimony. 14

15 Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 15 of 18 Id. at 66. This Court reasoned further, It s not enough simply to have proved to the jury that Mr. 4 Burke was in a conflict of interest. That can be an illegal conflict of interest or a perfectly legal conflict of interest, meaning no criminal culpability. The bottom line remains that there s unequivocal, unimpeached testimony that he performed services and was paid for those services with no connection to any preferential treatment, influence, or result. So while there may be sufficient evidence to support the conspiracy verdict, as well as to deny a new trial on conspiracy, there is the potential for a serious miscarriage of justice to let these verdicts on bribery and mail fraud stand. Id. at (emphasis added). 17. This Court s written order carefully drew the above distinction between the conspiracy to commit honest-services fraud charged in Count One (and the substantive wire fraud charges in Counts Four and Five), on the one hand, and the bribery charges in Counts Three and Four, on the other. According to this Court s Order, Simply put, the Government s primary witness, William Burke, testified unequivocally that he never conspired with Defendants to commit any type of fraud, never did anything illegal and was never bribed in return for preferential treatment of any of the Defendants consulting clients. Nothwithstanding that Burke entered a guilty plea pursuant to a written plea agreement in which he stipulated to facts in support of the charges, Burke essentially disavowed his guilty plea and those underlying facts, explaining to the jury that he pled guilty simply to avoid going to prison. With respect to the $ the Government contends was a bribe paid by Defendants to Burke, Burke explained that he performed more than 45 hours of services for Defendants for which he invoiced 4 Thus, this Court suggested again that Count One, in contrast to the bribery counts, were sustained on a mere conflict of interest theory, which again was rejected in Skilling. 15

16 Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 16 of 18 Dkt. 72 at 2-3. Defendants at the rate of $ per hour. Burke invoiced Defendants for those services (Government s Exhibits 4B and 4C) and received IRS 1099 forms from Defendants. Burke adamantly maintained without any contradictory evidence presented by the Government that he actually performed those services and was paid only for those services. Applying Rule 29 standards, the Court assumes the truth of the evidence offered by the prosecution, to wit, Burke s testimony that he performed legitimate services and was paid at the rate of $ per hour for 45 hours. United States v. Martinez, 763 F. 2d at The Government offered no evidence to the contrary and accordingly, there was no evidence on which a reasonable jury could have concluded that the $ represented a bribe paid to Burke in exchange for preferential treatment of Defendants consulting clients. In sum, the Government presented no evidence that Defendants directly or indirectly gave or offered or promised something of value to Burke and that the Defendants did so knowingly and corruptly, with intent to influence an official act or to influence such public official (Burke) to allow or make opportunity with the commission of a fraud on the United States. (See Jury Instructions, Dkt. 58 at p. 14). 18. In summary, taken together, the indictment, the jury instructions, the verdict form, the closing arguments at trial, the arguments at the hearing on post-trial motions, and this Court s order on those motions lead to the conclusion that the jury s verdict on Count One was based on a theory of honest-services fraud that is no longer valid after Skilling. Skilling holds that honestservices fraud under 18 U.S.C is limited to bribery and kickback schemes. Skilling explicitly rejected the government s argument that 1346 encompasses a more general conflictof-interest theory. This Court directly held that the government failed to demonstrate that bribery occurred, yet reasoned that the government s evidence sustained an honest-services fraud conviction based on a conspiracy to create a conflict of interest for Mr. Burke. Because Skilling unequivocally rejected this approach to proving violations of 1346, Mr. Spellissy s conviction 16

17 Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 17 of 18 must be vacated. Clearly, there is no other basis, for instance a bribery theory, for the jury to have found guilt on Count One. Thus, the Skilling error was not harmless. The harmless error standard is substantial, as the government must show beyond a reasonable doubt that the jury had a factual basis other than a conflict-of-interest theory to convict Mr. Spellissy of honest-services fraud. As demonstrated above, the government, the defendants, and this Court universally evaluated Count One as a conflict-of-interest case. 19. Accordingly, petitions for writs of error coram nobis should be granted under the Peter standard. Skilling must be given retroactive effect, and the effect of Skilling is that the conduct of which defendants were convicted in Count One is no longer criminal. WHEREFORE, defendants petition pursuant to 28 U.S.C. 1651(a) for issuance of writs of error coram nobis to vacate their convictions. Respectfully submitted, FARMER & FITZGERALD, P.A. /s MATTHEW P. FARMER, ESQ. Matthew P. Farmer, Esq. FL Bar No E. Jackson St. Tampa, FL (813) FAX (813) MattFarmer1@aol.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been via electronic mail on this 22nd day of November to the following: 17

18 Case 8:05-cr JDW-TGW Document 226 Filed 11/22/10 Page 18 of 18 United States Attorney Robert O Neill Robert.O Neill@usdoj.gov /s MATTHEW P. FARMER, ESQ. COUNSEL 18