     Case: 15-60092      Document: 00513614679         Page: 1    Date Filed: 07/28/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-60092
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 28, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

KEN NOWLIN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:07-CR-108-2


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Ken Nowlin, former federal prisoner # 12642-042 appeals the district
court’s denial of his petition for coram nobis challenging his guilty plea
conviction for conspiring with a corruptly influenced Lafayette County,
Mississippi, Board supervisor illegally to share commissions from the county’s
purchase of its employees’ health insurance policies in violation of 18 U.S.C.
§ 666. Nowlin’s motion to supplement the record is GRANTED.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 15-60092    Document: 00513614679     Page: 2   Date Filed: 07/28/2016


                                 No. 15-60092

      This court reviews the district court’s “factual findings for clear error,
questions of law de novo, and the district court’s ultimate decision to deny the
writ [of coram nobis] for abuse of discretion.” Santos-Sanchez v. United States,
548 F.3d 327, 330 (5th Cir. 2008), vacated on other grounds, 559 U.S. 1046,
(2010). The writ of coram nobis is an extraordinary remedy. It is appropriate
when the petitioner is no longer in custody but “can demonstrate that he is
suffering from civil disabilities as a consequence of the criminal convictions
and that the challenged error is of sufficient magnitude to justify extraordinary
relief.” United States v. Castro, 26 F.3d 557, 559 (5th Cir. 1994) (internal
quotations and citation omitted). This writ, however, will issue only if there is
no other remedy available and if sound reason exists for the defendant’s failure
to seek appropriate earlier relief. United States v Dyer, 136 F.3d 417, 422 (5th
Cir. 1998).
      Nowlin argues that the district court erred as a matter of law in
misconstruing the decision in United States v. Whitfield, 590 F.3d 325 (5th Cir.
2009), by failing to require the Government to allege and prove a direct nexus
between the alleged bribery misconduct and the $10,000 in federal funds
received by the county, a jurisdictional element in a § 666 case. He contends
that, in the absence of proof of that nexus element, the district court lacked
subject matter jurisdiction over his criminal proceedings. The Government
responded that the alleged “jurisdictional” issue was actually an objection to
the sufficiency of the evidence to support the § 666 charge and that he had
waived his objection to the sufficiency of the evidence in pleading guilty.
      Section 666 penalizes one who corruptly gives or offers to give anything
of value, with the intent to influence or reward an agent of the State, in
connection with any agency business or transaction involving anything with a
value of $5000 or more, if that agency receives during the relevant period in



                                       2
    Case: 15-60092    Document: 00513614679      Page: 3   Date Filed: 07/28/2016


                                 No. 15-60092

excess of $10,000 of federal program funds per year. The jurisdictional element
in the offense is the $10,000 in federal funds. See United States v. Richard,
775 F.3d 287, 293 (5th Cir. 2014).
      Nowlin’s argument that the court lacked subject matter jurisdiction is
without merit because a direct nexus between the criminal conduct and the
federal funds is not a jurisdictional element of a § 666 offense. See Sabri v.
United States, 541 U.S. 600, 604 (2004). Thus, Nowlin’s argument that the
district court lacked subject matter jurisdiction in the case is without merit.
      Reliance on Whitfield is misplaced because the Supreme Court and this
court have established that in proving an offense under § 666, there must be a
nexus between the bribery conduct and the agency receiving the federal funds.
See Salinas v. United States, 552 U.S. 52, 56-57 (1997); United States v.
Phillips, 219 F.3d 404, 413-14 (5th Cir. 2000). There is no requirement that
there be a direct connection between the misconduct and the federal program
funds. Phillips, 219 F.3d at 413-14.
      The district court’s denial of the petition for coram nobis is AFFIRMED.
All outstanding motions are DENIED as moot.




                                       3
