
USCA1 Opinion

	




             May 21, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1017                                   EDWARD B. HAGER,                                     Petitioner,                                          v.                              UNITED STATES OF AMERICA,                                     Respondent.                                 ____________________               APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                [Hon. Martin F. Loughlin, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Robert E. McDaniel with whom Devine,  Millimet & Branch, P.A.  was            __________________           ________________________________        on brief for petitioner.                                         -1-                                          1            Peter E. Papps, United States Attorney, for respondent.            ______________                                 ____________________                                     May 21, 1993                                 ____________________                       BREYER, Chief  Judge.   In a hearing  conducted on                               ____________             May 29, 1990, the appellant, Edward Hager, entered a plea of             guilty to a charge of  unlawfully importing four wild animal             pelts  from  Mexico into  the  United States.  16  U.S.C.                3372(a)(2)(A) (prohibiting importation of wildlife  taken or             possessed  in  violation   of  foreign  law),  3373(d)(1)(A)             (setting  criminal  penalties for  violation).   Immediately             after  the hearing, the  court sentenced Hager  to serve one             year of  unsupervised probation and  to pay a  $75,000 fine.             He  did not  appeal the  court's judgment.   On  November 2,             1992, he asked the district  court to issue a writ  of coram             nobis,  setting  aside his  conviction.    See 28  U.S.C.                                                           ___             1651(a)("All Writs Act"); United  States v. Morgan, 346 U.S.                                       ______________    ______             502, 512 (1954).  The district court denied the petition for             the writ.  And, Hager appeals the court's decision.                       Hager  makes  one argument  on  this  appeal.   He             points  out  that the  district  court,  before accepting  a             guilty plea, must make certain that the defendant's "plea is             voluntary."  Fed. R. Crim. P. 11(d); see also North Carolina                                                  ___ ____ ______________             v. Alford, 400 U.S.  25, 31 (1970) (plea must  be "voluntary                ______             and  intelligent choice  among  the alternative  courses  of             action open to  the defendant").   Hager says  that, in  his                                         -3-                                          3             case, the district court  failed to make this determination.             The court asked him                        "Now, have  there been any  threats made                       by anyone  against  you, any  member  of                       your family, or anyone  near and dear to                       you which compels you to offer a plea of                       guilty here this morning?"             The appellant replied,                       "Only the threat to my health, sir."             How,  asks  the appellant,  could  the  district court  know             enough about the matter after this brief exchange to satisfy             itself that the "threat" to his "health" was not so grave as             to make his plea essentially involuntary?  Unless there is a             satisfactory answer  to this question, he  adds, his "guilty             plea"  proceeding  was so  seriously  flawed  as to  warrant             issuance of the coram nobis writ.                         The legal answer  to appellant's question  is that             the  writ of  coram nobis  is an  unusual legal  animal that             courts  will  use  to  set  aside  a  criminal  judgment  of             conviction only "under  circumstances compelling such action             to  achieve justice."  See  Morgan, 346 U.S.  at 511.  Those                                    ___  ______             circumstances include  an explanation  of why a  coram nobis             petitioner did  not earlier  seek relief from  the judgment,             see  United States v. Osser, 864 F.2d 1056, 1061-62 (3d Cir.             ___  _____________    _____             1988), Kiger v. United States, 315 F.2d 778, 779 (7th Cir.),                    _____    _____________                                         -4-                                          4             cert.  denied,  375  U.S. 924  (1963);  a  showing that  the             _____________             petitioner  continues  to   suffer  significant   collateral             consequences from the judgment, see Morgan, 346 U.S. at 512-                                             ___ ______             13, Howard v.  United States,  962 F.2d 651,  653 (7th  Cir.                 ______     _____________             1992);  and  a demonstration  that  an  error of  "the  most             fundamental  character,"  relevant  to  the  plea  decision,             occurred. See Morgan, 346 U.S. at 512.                        ___ ______                       The appellant has neither explained why he did not             pursue  a timely  appeal nor  shown  significant, continuing             collateral consequences  flowing from his conviction.   And,             he has  conceded the following facts: (1) at the time of the             plea hearing,  the district court  was aware of  his medical             problems, both from the record of earlier proceedings in the             case  prior  to  its  transfer to  New  Hampshire  and  from             appellant's own description of  these problems, later in the             course  of the hearing; (2) when asked whether there was any             reason  why the  court should  not accept  appellant's plea,             appellant replied  that there  was not,  see  Key v.  United                                                      ___  ___     ______             States,  806  F.2d 133,  136  (7th  Cir. 1986)  (defendant's             ______             representations  at   plea   hearing  strong   obstacle   to             successful collateral attack on conviction); (3) appellant's             counsel,  in response  to  the court's  inquiry, stated  his             opinion  that  the plea  was in  the  best interests  of his                                         -5-                                          5             client, see United States  v. Guichard, 779 F.2d  1139, 1145                     ___ _____________     ________             (5th Cir.), cert. denied, 475 U.S. 1127 (1986) (unless overt                         ____________             coercion  alleged,   counsel's  opinion  good   evidence  of             voluntary  and intelligent  plea), citing  United States  v.                                                ______  _____________             Araiza,  693  F.2d 382,  385 (5th  Cir.  1982); and  (4) the             ______             government demonstrated at the coram nobis proceeding before             the district court that, two months after entering his plea,             appellant was well enough  to travel to Africa to  hunt wild             animals.     These   facts,  together,   convince   us  that             appellant's  plea was  not "involuntary;"  that the  court's             failure  to  ask  more   health-related  questions  was  not             erroneous; and,  certainly, that no error  of a "fundamental             character" occurred.  See  Morgan, 346 U.S. at 512;  Fed. R.                                   ___  ______             Crim. P. 11(h)  (no redress for Rule 11 error which does not             violate  substantial rights); cf. United States v. Timmreck,                                           ___ _____________    ________             441  U.S.  780,  784   (1979)  (to  justify  habeas  relief,             violation  of  Rule  11  must be  "complete  miscarriage  of             justice"  or  "omission  inconsistent with  the  rudimentary             demands of fair procedure," not just technical violation).                       The judgment  of  the district  court denying  the             petition for a writ of coram nobis is                       Affirmed.                       ________                                         -6-                                          6
