                                                 [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT            FILED
                   ________________________ U.S. COURT OF APPEALS
                                                 ELEVENTH CIRCUIT
                         No. 07-12070              AUGUST 5, 2008
                     Non-Argument Calendar        THOMAS K. KAHN
                   ________________________           CLERK


             D. C. Docket Nos. 05-00152-CV-J-25-MCR
                         01-00251-CR-J-2

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                             versus

ROBERT LLOYD PEARL,

                                                Defendant-Appellant.

                   ________________________

                         No. 07-12715
                     Non-Argument Calendar
                   ________________________

             D. C. Docket Nos. 04-01329-CV-J-25-MCR
                         01-00251-CR-J-2


ROBERT MACPHERSON,

                                                 Petitioner-Appellant,

                             versus
UNITED STATES OF AMERICA,

                                                Respondent-Appellee.


                     ________________________

                           No. 07-13087
                       Non-Argument Calendar
                     ________________________

              D. C. Docket No. 01-00251-CR-J-25MCR

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                              versus

WILLIAM M. THOMAS,

                                                Defendant-Appellant.


                     ________________________

                           No. 07-13089
                       Non-Argument Calendar
                     ________________________

              D. C. Docket No. 01-00251-CR-J-25TEM

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                              versus



                                2
NOAH DWIGHT BAKER, SR.,
LINDA BAKER,
BRENDA S. PHENIS,

                                               Defendants-Appellants.

                   ________________________

                         No. 07-13092
                     Non-Argument Calendar
                   ________________________

              D. C. Docket Nos. 01-00251-CR-J-25MCR
                          04-01329-CV-J-2

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                             versus

WILEY RICHARD COUTURIER,
VICTOR E. MARCHITELLO,
GARY DAVID PINCUS,
ERIC POSNAN,
MICHAEL BERRY,

                                               Defendants-Appellants.

                   ________________________

                         No. 07-13097
                     Non-Argument Calendar
                   ________________________

              D. C. Docket No. 01-00251-CR-J-25MCR

UNITED STATES OF AMERICA,

                                3
                                                       Plaintiff-Appellee,

                              versus

PATRICK DORAN,

                                                  Defendant-Appellant.

                    ________________________

                          No. 07-13650
                      Non-Argument Calendar
                    ________________________

              D. C. Docket Nos. 07-00478-CV-J-25-HTS
                          01-00251-CR-J-2

JAMES P. FAHERTY,

                                                  Petitioner-Appellant,

                              versus

UNITED STATES OF AMERICA,

                                                 Respondent-Appellee.

                    ________________________

                          No. 07-13651
                      Non-Argument Calendar
                    ________________________

              D. C. Docket Nos. 07-00456-CV-J-25-HTS
                          01-00251-CR-J-2

DONALD M. HART,



                                4
                                                               Petitioner-Appellant,

                                       versus

UNITED STATES OF AMERICA,

                                                              Respondent-Appellee.

                           ________________________

                   Appeals from the United States District Court
                        for the Middle District of Florida
                         _________________________

                                  (August 5, 2008)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      Robert Lloyd Pearl, Noah Dwight Baker, Sr., Linda Baker, Michael L.

Berry, Wiley Richard Couturier, Patrick Doran, James P. Faherty, Donald M. Hart,

Robert MacPherson, Victor E. Marchitello, Brenda S. Phenis, Gary David Pincus,

Eric Posnan, and William Mikey Thomas (collectively “appellants”) appeal from

the district court’s denial of their petitions for writ of error coram nobis, pursuant

to 28 U.S.C. § 1651(a). Prior to seeking this relief, the appellants had pleaded

guilty to conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371, which

was related to a scheme to embezzle and redeem winning pieces to promotional

games run by McDonald’s restaurants, and admitted that they had redeemed



                                          5
McDonald’s game pieces that were originally embezzled by Jerome P. Jacobson.

Following these guilty pleas, appellant Couturier was sentenced to a one-year and

one-day term of imprisonment, along with restitution, and the other appellants

were each sentenced to probation and restitution.

      Although the appellants pleaded guilty, several of the other defendants

charged in the same indictment pleaded not guilty, proceeded to trial, and were

convicted. See United States v. Chandler, 388 F.3d 796 (11th Cir. 2004). We

reversed these convictions on appeal, holding that “the government must allege and

prove that the defendants knowingly entered into an agreement to commit an

unlawful act,” id. at 800 (emphases omitted), and that while the indictment did

allege an unlawful act, it did not allege that the defendants knew that the game

stamps had been stolen. Id. Based on Chandler, the appellants here sought and

were denied coram nobis relief, and now argue in this appeal that the district court

should have granted their petitions on grounds that: (1) the district court lacked

subject matter jurisdiction because there was a fundamental error in the indictment

in that it did not allege a crime; (2) the factual bases of their guilty pleas were

insufficient because the appellants did not plead guilty to criminal conduct; and (3)

their guilty pleas were not knowing and voluntary. After thorough review of the

briefs and record, we affirm.



                                         6
      We review a district court’s denial of the writ of error coram nobis for an

abuse of discretion. Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000).

The writ of error coram nobis is a remedy available under the All Writs Act, 28

U.S.C. § 1651(a) to vacate a conviction when the petitioner has served his or her

sentence and is no longer in custody because “the results of the conviction may

persist . . . .” United States v. Peter, 310 F.3d 709, 712 (11th Cir. 2002) (citations

omitted). “The writ of error coram nobis is an extraordinary remedy of last resort

available only in compelling circumstances where necessary to achieve justice.”

United States v. Mills, 221 F.3d 1201, 1203 (11th Cir. 2000). The bar for coram

nobis is high and relief may issue only where: (1) “there is and was no other

available avenue of relief,” and (2) “when the error involves a matter of fact of the

most fundamental character which has not been put in issue or passed upon and

which renders the proceeding itself irregular and invalid.” Alikhani, 200 F.3d at

734 (internal quotation omitted). Furthermore, a district court may consider coram

nobis petitions only where the petitioner presents sound reasons for failing to seek

relief earlier. United States v. Morgan, 346 U.S. 502, 512 (1954) (holding that

where “no other remedy [is] available and sound reasons exist[] for failure to seek

appropriate earlier relief” a defendant’s motion for writ of coram nobis must be

heard by the federal court). “[T]he concern with finality served by the limitation



                                          7
on collateral attack has special force with respect to convictions based on guilty

pleas.” United States v. Timmreck, 441 U.S. 780, 784 (1979) (footnote omitted).

      We first are unpersuaded that the district court abused its discretion in

denying their writ of error coram nobis on the ground that it lacked subject matter

jurisdiction due to a fundamental error in the indictment -- that is, that it did not

allege that the appellants knew the game pieces were stolen, as required by

Chandler.   The elements of a conspiracy under 18 U.S.C. § 371 are (1) an

agreement among two or more persons to achieve an unlawful objective; (2) the

defendant’s knowing and voluntary participation in the agreement; and (3) an overt

act in furtherance of the agreement. United States v. Adkinson, 158 F.3d 1147,

1153 (11th Cir. 1998).    “Mail fraud consists of the following elements: (1) an

intentional participation in a scheme to defraud a person of money or property, and

(2) the use of the mails in furtherance of the scheme.” United States v. Sharpe, 438

F.3d 1257, 1263 (11th Cir. 2006) (internal quotation omitted).

      In Peter, 310 F.3d at 711, the defendant pleaded guilty to mail fraud,

admitting that he made misrepresentations in an application for a state liquor

license. However, a later decision by the U.S. Supreme Court held that the same

conduct to which Peter pleaded guilty was outside the reach of the mail fraud

statute because the statute required the object of the fraud to be “property,” and



                                         8
state and municipal licenses were not property. Id. We granted Peter’s petition for

writ of error coram nobis, holding that the district court lacked jurisdiction because

the indictment alleged only a non-offense. Id. at 715-16. We stated that “[t]he

problem is not that the Government’s case left unanswered a question as to

whether its evidence would encompass a particular fact or element,” but rather that

the government “affirmatively alleged a specific course of conduct that is outside

the reach of the mail fraud statute.” Id. at 715. In so holding, we distinguished

claims that a defendant had been charged in an indictment that alleged conduct that

was non-criminal, which was a jurisdictional defect, from claims involving

indictments with omissions, such as a missing element, which were not

jurisdictional. See id. at 714. Similarly, in United States v. Cotton, 535 U.S. 625,

630-31 (2002), the Supreme Court held that an indictment’s failure to allege an

essential element of an offense did not constitute a jurisdictional defect.

      Here, the district court properly found that the indictment clearly alleged a

single conspiracy with two unlawful objects -- to steal McDonald’s game pieces

and redeem them by misrepresentations amounting to criminal fraud.               This

conclusion is well supported by Chandler, which notably held that “[t]he

indictment did allege an unlawful act in the embezzlement of the game stamps.”

388 F.3d at 800. Thus, this case is unlike Peter, where the indictment charged



                                           9
conduct that, even if proven, did not constitute a criminal offense. Peter, 310 F.3d

at 715. Moreover, even if the indictment at issue here failed to allege an element

of the offense, such an omission would not divest the district court of subject

matter jurisdiction over the case. See id. at 714. Therefore, the district court did

not abuse its discretion in finding that it had subject matter jurisdiction over the

guilty pleas and denying the appellants’ writs of error coram nobis on this ground.

      We next reject the appellants’ contention that the district court abused its

discretion in denying the writ of error coram nobis on the ground that their plea

agreements were defective and did not indicate that the appellants had pleaded

guilty to criminal conduct because the factual bases in the plea agreements did not

establish that the appellants were aware that the game pieces had been embezzled.

Even assuming that the possible insufficiency of the factual bases was a

“fundamental” error, the appellants did not challenge the indictment or their guilty

pleas until after we decided Chandler, and they have presented no sound reason for

failing to do so earlier. See Morgan, 346 U.S. at 512 (holding that where “no other

remedy [is] available and sound reasons exist[ ] for failure to seek appropriate

earlier relief” a defendant's motion for writ of error coram nobis must be heard by

the federal court). Indeed, the appellants’ limited appeal waivers did not prevent

them from challenging this issue on direct appeal, but rather, only implicated their



                                        10
ability to appeal their sentences. Furthermore, that the appellants already filed §

2255 motions -- indicating that other avenues of relief are not currently available --

does not save the fact that these claims could have, and should have, been raised on

direct appeal. See Alikhani, 200 F.3d at 734 (holding that some of Alikahni’s

claims were not “facially . . . cognizable on coram nobis review” because they

could have been brought in a pretrial motion). In short, the appellants have not

established that they are entitled to the “extraordinary” remedy of coram nobis

relief on this ground. See Mills, 221 F.3d at 1203.

      Lastly, we find no merit to the argument that the district court abused its

discretion in denying the writ of error coram nobis on the ground that the

appellants’ pleas were not knowing and voluntary because they did not know that

the government was required to prove that they had knowledge that the game

pieces were stolen, they received ineffective assistance of counsel, and the

government committed a violation pursuant to Brady v. Maryland, 373 U.S. 83

(1963). The Supreme Court has “strictly limited the circumstances under which a

guilty plea may be attacked on collateral review.” Bousley v. United States, 523

U.S. 614, 621 (1998). It has held that “the voluntariness and intelligence of a

guilty plea can be attacked on collateral review only if first challenged on direct

review.” Id.



                                         11
       While coram nobis relief is available in some circumstances to those who

have pleaded guilty, it is not available to challenge the knowledge and

voluntariness of the plea itself when that issue has not been raised in an earlier

proceeding. Bousley, 523 U.S. at 621. Here, the appellants did not challenge the

intelligence or voluntariness of their guilty pleas on direct appeal. Moreover, as

noted above, the appellants have not presented “sound reasons” for failing to seek

relief earlier. See Morgan, 346 U.S. at 512. Accordingly, the district court did not

abuse its discretion in denying the writ on this ground, and the decision of the

district court is affirmed.

       AFFIRMED.




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