16-3431
Prousalis v. United States of America


                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT

                             SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


     At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
30th day of June, two thousand seventeen.

PRESENT:
         DENNIS JACOBS,
         PIERRE N. LEVAL,
         REENA RAGGI,
              Circuit Judges.
_____________________________________

THOMAS T. PROUSALIS, JR.,
              Plaintiff-Appellant,

             v.                                                    16-3431

UNITED STATES OF AMERICA,
              Defendant-Appellee.
_____________________________________



FOR PLAINTIFF-APPELLANT:                   Thomas T. Prousalis, Jr. (on the
                                           brief), pro se, Richmond, VA.

                                           MATTHEW GREENFIELD, Gibson, Dunn
                                           & Crutcher LLP, New York, NY.
FOR DEFENDANT-APPELLEE:        STEPHANIE LAKE (Anna Skotko, on
                               the brief), Assistant United
                               States Attorney, for Joon H. Kim,
                               Acting United States Attorney
                               for the Southern District of New
                               York, New York, NY.

     Appeal from a judgment of the United States District Court
for the Southern District of New York (Cote, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.

     Thomas T. Prousalis, Jr. pleaded guilty in 2004 to
defrauding investors in connection with the initial public
offering of a company that he served as outside counsel. In
2012, Prousalis unsuccessfully sought habeas relief in the
Eastern District of Virginia, arguing that the conduct for which
he was convicted was no longer criminal in light of Janus Capital
Group, Inc. v. First Derivative Traders, 564 U.S. 135 (2011).
Prousalis subsequently petitioned the United States District
Court for the Southern District of New York (Cote, J.) for a
writ of error coram nobis on the same basis. He now appeals
the district court’s judgment denying that petition. We assume
the parties= familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.

     “Coram nobis is essentially a remedy of last resort for
petitioners who are no longer in custody pursuant to a criminal
conviction and therefore cannot pursue direct review or
collateral relief by means of a writ of habeas corpus.” Fleming
v. United States, 146 F.3d 88, 89-90 (2d Cir. 1998) (per curiam).
It “is not a substitute for appeal, and relief under the writ
is strictly limited to those cases in which errors of the most
fundamental character have rendered the proceeding itself
irregular and invalid.” Foont v. United States, 93 F.3d 76,
78 (2d Cir. 1996) (internal quotation marks and alterations
omitted). The coram nobis petitioner must demonstrate that “1)
there are circumstances compelling such action to achieve
justice, 2) sound reasons exist for failure to seek appropriate
earlier relief, and 3) the petitioner continues to suffer legal
consequences from his conviction that may be remedied by

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granting of the writ.” Kovacs v. United States, 744 F.3d 44,
49 (2d Cir. 2014) (internal quotation marks omitted).

     This Court reviews the denial of a writ of error coram nobis
for abuse of discretion, but we review de novo whether the
district court applied the proper legal standard. United
States v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000). Here,
the district court applied the proper legal standard and
correctly determined that there were no circumstances
compelling coram nobis relief.

     Prousalis argues that he is entitled to coram nobis relief
because, under Janus, he was not the “maker” of the false
statements that led to his conviction for securities fraud.
The government argues, inter alia, that Janus is not applicable
in criminal cases. We need not address this issue.
Prousalis’s conviction would stand regardless of Janus’s
application in this case because he allocuted to conduct that
constitutes a violation of 18 U.S.C. § 2(b), which provides that
“[w]hoever willfully causes an act to be done which if directly
performed by him or another would be an offense against the
United States, is punishable as a principal.”

     We have considered all of Prousalis’s remaining arguments
and find them to be without merit. Accordingly, we AFFIRM the
judgment of the district court.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, CLERK




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