             Case: 17-11067   Date Filed: 10/03/2017   Page: 1 of 8


                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 17-11067
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 8:05-cr-00475-JDW-TGW-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                   versus

THOMAS F. SPELLISSY,

                                                           Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                               (October 3, 2017)

Before MARCUS, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Thomas Spellissy was convicted of conspiracy to defraud the United States

and to commit bribery and wire fraud, and has served his sentence. Spellissy’s

offense of conviction arose from his employment as a consultant to various
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companies seeking to transact business with the U.S. Special Operations Command

(“SOCOM”), and his interactions with William E. Burke, an employee of a private

contractor who was assigned to a division of SOCOM, and, in that capacity, acted

for and on behalf of the United States and the U.S. Department of Defense

(“DOD”). As a felon no longer in custody, he now appeals the district court’s

order denying his petition for a writ of error coram nobis, 28 U.S.C. § 1651(a). On

appeal, Spellissy argues that the district court erred in denying him coram nobis

relief because: (1) his conviction for conspiracy to defraud the United States, 18

U.S.C. § 371, through the commission of the offense of bribing a public official, 18

U.S.C. § 201(b)(1)(A), and wire fraud, 18 U.S.C. §§ 1343 and 1346, is now non-

criminal in light of the Supreme Court’s holding in McDonnell v. United States,

136 S. Ct. 2355 (2016); and (2) the district court made numerous errors in

instructing the jury, including an error based on Skilling v. United States, 130 S.

Ct. 2896 (2010). After thorough review, we affirm.

      We review a district court’s denial of a petition for a writ of error coram

nobis for abuse of discretion, keeping in mind that an error of law is an abuse of

discretion per se. United States v. Peter, 310 F.3d 709, 711 (11th Cir. 2002). The

abuse of discretion standard recognizes that there is a range of choices within

which we will not reverse the district court, even if we might have reached a

different decision. Siebert v. Allen, 506 F.3d 1047, 1049 n.2 (11th Cir. 2007).


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      First, we are unpersuaded by Spellissy’s claim for coram nobis relief based

on his argument that his conspiracy conviction now constitutes non-criminal

conduct. The All Writs Act, 28 U.S.C. § 1651(a), provides federal courts the

authority to issue writs of error coram nobis. United States v. Mills, 221 F.3d

1201, 1203 (11th Cir. 2000). A writ of error coram nobis is a remedy to vacate a

conviction, and is available, unlike relief under 28 U.S.C. § 2255, when the

petitioner has served his sentence and is no longer in custody. Peter, 301 F.3d at

712. The coram nobis writ is an extraordinary remedy that is only available “in

compelling circumstances where necessary to achieve justice.” Mills, 221 F.3d at

1203. The Supreme Court has explained that a writ of error coram nobis is

“traditionally available only to bring before the court factual errors material to the

validity and regularity of the legal proceeding itself, such as the defendant’s being

under age or having died before the verdict.” Carlisle v. United States, 517 U.S.

416, 429 (1996) (quotations omitted).

      A court can only provide coram nobis relief if: (1) no other avenue of relief

is available or has been available; and (2) the petitioner presents a fundamental

error that made the proceedings irregular and invalid. Alikhani v. United States,

200 F.3d 732, 734 (11th Cir. 2000). Where other avenues of relief are available, a

district court may consider coram nobis petitions only when a petitioner presents

sound reasons for failing to seek relief earlier. Mills, 221 F.3d at 1204. By its


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nature, a jurisdictional error is of “such a fundamental character as to render

proceedings irregular and invalid.” Peter, 310 F.3d at 715 (quotation omitted). In

Peter, we granted coram nobis relief where the district court did not have

jurisdiction to accept the defendant’s guilty plea because, based on the retroactive

effect of the Supreme Court’s decision that licenses were not “property” under the

mail fraud statute, the defendant’s actions had never violated the mail fraud statute

and did not constitute criminal conduct. Id. at 715.

      It is illegal for two or more persons to conspire either to commit any offense

against the United States, or to defraud the United States, or any agency thereof in

any manner or for any purpose, and for one or more of such persons to do any act

to effect the object of the conspiracy. See 18 U.S.C. § 371. It is also illegal for a

person to directly or indirectly, corruptly give, offer or promise anything of value

to any public official or person who has been selected to be a public official, or

offer or promise any public official or any person who has been selected to be a

public official to give anything of value to any other person or entity, with intent to

influence any official act. Id. § 201(b)(1)(A). The term “official act” is defined as

“any decision or action on any question, matter, cause, suit, proceeding or

controversy, which may at any time be pending, or which may by law be brought

before any public official, in such official’s official capacity, or in such official’s

place of trust or profit.” Id. § 201(a)(3).


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      In McDonnell, the Supreme Court held that setting up a meeting, calling

another public official, or hosting an event does not, standing alone, qualify as an

“official act.” 136 S. Ct. at 2368. The Supreme Court concluded that an “official

act” is a decision or action on a “question, matter, cause, suit, proceeding or

controversy” that must involve a formal exercise of governmental power that is

similar in nature to a lawsuit before a court, a determination before an agency, or a

hearing before a committee and must also be something specific and focused that is

“pending” or “may by law be brought” before a public official. Id. at 2371-72.

The Supreme Court vacated McDonnell’s conviction, holding that the instructions

given to the jury on the term “official act” were significantly overinclusive. There,

the jury had been instructed that the term “official action” included “actions that

have been clearly established by settled practice as part of a public official’s

position, even if the action was not taken pursuant to responsibilities explicitly

assigned by law” and that “official actions may include acts that a public official

customarily performs,” including acts “in furtherance of longer-term goals” or “in

a series of steps to exercise influence or achieve an end.” Id. at 2373-75. The

Supreme Court concluded that the jury may have convicted McDonnell for conduct

that was not unlawful, and, therefore, could not conclude that the errors in the jury

instructions were “harmless beyond a reasonable doubt.” Id. at 2375.




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      Under the law-of-the-case doctrine, both district and appellate courts are

generally bound to follow a prior appellate decision in the same case. Thomas v.

United States, 572 F.3d 1300, 1303 (2009).          The law-of-the-case doctrine

“generally operates to preclude a reexamination of issues decided upon appeal,

either by the district court on remand or by the appellate court itself upon a

subsequent appeal.” Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir. 1984)

(quotations omitted). We have recognized three exceptions to the law-of-the-case

doctrine, in cases where: “(1) the evidence on a subsequent trial was substantially

different, (2) controlling authority has since made a contrary decision of the law

applicable to the issue, or (3) the previous decision was clearly erroneous and

would work a manifest injustice.” Id. at 768-69.

      Here, the district court did not abuse its discretion by denying Spellissy’s

petition for writ of error coram nobis because Spellissy did not demonstrate that

the alleged jury instruction error in violation of McDonnell was a fundamental

error that made the proceedings irregular and invalid. Alikhani, 200 F.3d at 734.

Indeed, even if we were to assume that the jury instructions in his case were overly

inclusive as in McDonnell, any alleged error in the jury instructions would be

harmless. As the record reveals, the government did not rely at trial on conduct

like arranging meetings, calling another public official, or hosting an event as

evidence of official acts to sustain his conviction. Instead, the government focused


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its evidence and argument on Burke’s participation in the review and prioritization

of a specific proposal pending before the Comparative Testing Office and his

agreement to influence that process in exchange for bribes from Spellissy -- in

other words, conduct that involved the awarding of specific government contracts

up for bid, and that still meets the definition of “official act” after McDonnell. See

Hedgpeth, 555 at 58-62. Therefore, unlike in McDonnell, the jury could not have

convicted Spellissy of conduct that is now unlawful. Under these circumstances,

we cannot say that Spellissy suffered an error of the most fundamental character

that rendered the proceeding itself irregular and invalid for purposes of coram

nobis relief. Peter, 310 F.3d at 715.

       Nor do Spellissy’s allegations of cumulative error entitle him to coram nobis

relief. Among other things, he has not demonstrated why he could not have

previously raised on direct appeal any alleged error in the district court’s

instruction that “the defendants knowingly and willfully conspired together.”

Alikhani, 200 F.3d at 734. 1           As for his argument based on Skilling, he has

previously raised it and we have already rejected it. Under the law-of-the-case

doctrine, we are bound by that decision, and Spellissy has not demonstrated either

that controlling authority has since made a contrary decision, or that the previous

1
        As for Spellissy’s challenge to the jury instruction on “intent to defraud,” he raises this
argument for the first time in this appeal. As we’ve “repeatedly held[,] . . . an issue not raised in
the district court and raised for the first time in an appeal will not be considered.” Access Now,
Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (quotations omitted).
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decision was clearly erroneous. Thomas, 572 F.3d at 1303; Westbrook, 743 F.2d

at 768. Accordingly, we conclude that the district court did not abuse its discretion

by denying Spellissy’s petition for writ of error coram nobis.

      AFFIRMED.




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