                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 ___________

                                   No. 07-3205
                                 ___________
United States of America,              *
                                       *
            Appellee,                  * Appeal from the United States
                                       * District Court for the Eastern
      v.                               * District of Missouri.
                                       *
Angela Smiley,                         *
                                       *
            Appellant.                 *
                                 _____________

                                Submitted: June 11, 2008
                                    Filed: January 26, 2009
                                 _____________

Before LOKEN, Chief Judge, COLLOTON, Circuit Judge, and PIERSOL1, District
Judge.
                             _____________

PIERSOL, District Judge.

       After pleading guilty to mail fraud and failure to pay over federal taxes,
Defendant and Appellant Angela Smiley was originally sentenced to 36 months of
imprisonment. Seven days after Smiley was originally sentenced the Government
moved to vacate her sentence, contending that Smiley had improperly failed to
identify for United States Probation an interest she was holding in a condominium in


      1
        The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota, sitting by designation.
Florida. The district court vacated the original sentence and eventually sentenced
Smiley to seventy-two months of imprisonment and ordered restitution in the amount
of $674,691.41. On appeal Smiley contends that the district court lacked the authority
to vacate her original sentence and resentence her. Smiley also challenges the amount
of restitution ordered by the district court. We reverse the district court’s order
vacating Smiley’s original sentence and the district court’s resentencing of Smiley but
affirm the district court’s order of restitution.

                                    I. Background
      Defendant and Appellant Angela Smiley was the president of American Payroll
Service (APS). APS offered business clients payroll and payroll tax services which
included the preparation of IRS forms and the transmission of federal tax deposits.
At Smiley’s direction APS drafted funds directly from its business clients’ bank
accounts for the purpose of paying its APS business clients’ federal tax liabilities, but
on numerous occasions failed to pay the clients’ federal tax liabilities. Instead of
forwarding the funds to the IRS, Smiley used the funds to pay APS’ employees’
payroll and operating expenses, and to pay her own salary and to pay her husband,
who was not an APS employee. Smiley made numerous false statements to APS
business clients to conceal and further her scheme.

        On November 1, 2006, Smiley waived indictment and pleaded guilty to a
two-count information for mail fraud and failure to pay over federal taxes for the time
frame of January 2001 through September 2004. The plea agreement recommended
a final total offense level of 20. The plea agreement also required Smiley to truthfully
provide complete information to the United States Probation office (Probation) by
completing Net Worth and Cash Flow Statements as well as by signing releases
concerning financial information.

      Prior to sentencing the Government moved pursuant to18 U.S.C. § 3664(d)(5)
to extend the date for final determination of restitution to no later that 90 days

                                          -2-
following the sentencing date. The district court granted this motion. On January 19,
2007, Smiley appeared for sentencing with no objections to the factual statements or
application of sentencing guidelines to the facts in the presentence report. The district
court found a total offense level of 20 and a criminal history category of 1, with an
incarceration range of 33 to 41 months. The district court sentenced Smiley to
concurrent terms of 36 months.

       On January 26, 2007, a week after the original sentencing, the Government filed
a motion to vacate Smiley’s sentence. In the motion to vacate the Government
contended that when Smiley was interviewed by Probation on November 16, 2006,
Smiley failed to disclose an interest she held in a condominium2 in Florida. The
Government further asserted that a notice of foreclosure had been served on this
property on October 26, 2006, and that a foreclosure sale was scheduled for
February 12, 2007, should Smiley and her husband fail to pay off the loan balance by
that time. In addition, the motion represented that Smiley had purchased a $44,000
membership in a golf club in connection with the condominium. It was later revealed
that the membership in the golf club was terminated as there were no payments made
on it after October of 2006.

       On January 26, 2007, the same date that the motion to vacate was filed, the
district court entered an Order Vacating Sentence. The order vacating the sentence
referenced clear error under FED. R. CR. P. 353 as the basis for vacating Smiley’s
original sentence. This order also required Smiley to provide a true and accurate




      2
        A Special Agent with the Internal Revenue Service, Criminal Division, later
testified that the condominium was a time share. Smiley later testified that she and her
husband held a one-eighth fractional interest in the property.
      3
       FED. R. CR. P. 35(a) provides: “ Within 7 days after sentencing, the court may
correct a sentence that resulted from arithmetical, technical, or other clear error.”

                                          -3-
statement of her assets to the United States Probation Office and for Probation to
prepare a revised Presentence Investigation Report.

       After Smiley made the subsequent disclosure of assets, the Government
challenged the accuracy and completeness of the information, and the district court
granted the Government’s motion for further fact finding. On February 23, 2007, the
district court ordered Probation to: 1) obtain an inventory and appraisal of Smiley’s
personal possession, including home furnishings and vehicles owned and/or titled to
Smiley; 2) obtain valuation of Smiley’s husband’s companies; 3) obtain a minimum
of two years of bank statements from each and every personal and business account
of Smiley and her husband; and 4) obtain a detailed listing of assets transferred by
Smiley and/or her husband from the date of her initial appearance of November 1,
2006.

       On March 15, 2007, the Government, in seeking an injunction pursuant to the
All Writs Act, 28 U.S.C. § 1651(a), contended that the three Net Worth and Monthly
Cash Flow Statements completed by Smiley on November 14, 2006, and those
completed after the original sentencing failed to accurately and completely disclose
assets. The Government alleged that Probation in conducting its inventory of the
Smiley home located undisclosed assets including a 1969 classic GTO vehicle.4 The
inventory also located financial documents from the summer of 2006 indicating that
Smiley had transferred more than $851,000 in stocks to satisfy bank debts, a contract
transferring a business from Smiley’s father-in-law to Smiley’s husband, and April 14,
2006 Personal Financial Statements to a bank in which Smiley asserted an individual
net worth of $2,574,000. On April 9, 2007, the district court enjoined Smiley, and her
husband, mother, father and father-in-law from affecting the availability or value of
Smiley’s individually or jointly-held property or marital property, without seeking


      4
      The vehicle was titled in the name of Smiley’s father-in-law but had been used
by Smiley’s husband for many years.

                                         -4-
prior approval from the district court. The district court also revoked Smiley’s bond
after finding that Smiley had misled Probation with regard to the existence and
location of assets. On April 27, 2007, the district court ordered Probation to search
a storage container rented by Smiley and her husband and to report the contents of the
storage container to the Court. On July 20, 2007, the district court ordered an
appraisal of Smiley’s personal residence.

       On July 14, 2007, Smiley moved to vacate the sentencing hearing which was
scheduled for July 16, 2007, on the ground that the district court lacked jurisdiction
to proceed since the seven-day period to correct a sentence set forth in FED. R. CR. P.
35 had expired. On the August 23, 2007, hearing on the motion to vacate the
sentencing hearing the district court clarified that it was not proceeding under FED.
R. CR. P. 35, but had been proceeding on the inherent power of the court to determine
whether fraud had been committed on the court at the time of the original sentencing
and intended to vacate any sentence if such fraud had been committed.


       Smiley appeared for resentencing on August 28 and August 29, 2007. The
district court announced that it was proceeding “under the Court’s inherent authority
to determine whether or not the original sentence imposed on Ms. Smiley was the
product of fraud on the court.” The district court found that Smiley “failed to disclose
any number of things in any number of financial statements” to Probation. The
district court stated: “Can I tell you 100 percent what I would do then if I knew
everything today I knew on January 19? No one can take that crystal ball and
reconstruct it. But I’ll be honest. I struggled with whether a below guideline sentence
was appropriate. . . .” The original presentence report listed Smiley’s net worth as
$404,830, and the final presentence report listed her net worth as -$55,387. The
district court stated on the record at the August 2007 resentencing that a fraud had
been committed on the court based on the totality of the circumstances, which he
found as including Smiley lying about being separated from her husband and her


                                          -5-
husband’s failure to provide financial information,5 failing to disclose the Florida
property, inflating the value of her assets when they were in foreclosure, and failing
to disclose judgments of almost two million dollars that were entered against Smiley
or her business in January of 2007. The district court stated that although Smiley’s
conduct after the initial sentencing was not relevant to the determination of fraud, that
this conduct was relevant in judging Smiley’s credibility. The district court disclosed
that he was interested in Smiley being able to make restitution, and that the fraudulent
misrepresentations affected his thought process.

       The district court resentenced Smiley based on a total offense level of 27, as
opposed to the offense level of 20 which was applied at the original sentencing, and
resentenced Smiley to a Guidelines sentence of 72 months of imprisonment. The
district court also ordered restitution in the amount of $674,691.41.

                                      II. Discussion
The Power to Vacate Judgments Procured by Fraud
       Smiley contends that the district court erred in concluding that “fraud on the
court” gave the district court an independent jurisdictional basis to resentence her.
Smiley relies on Carlisle v. United States, 517 U.S. 416, 426 (1996), as support for
her position that there is no inherent power of the district courts to act in contravention
of the 7-day time limit to correct a sentence that is set forth in FED. R. CR. P. 35.


      5
        Smiley had advised Probation that she was encountering difficulty getting
financial information from her husband. The presentence writer in the original report
states that Smiley and her husband “were reportedly separated in September 2006 due
to the stress of Smiley’s current legal situation. . . . The husband was interviewed and
confirmed the above information.” The final presentence report states basically the
same regarding the marriage. Smiley’s husband of sixteen years testified at an April
27, 2007, hearing. When asked if he had lived in the same home with her until the
time Smiley was detained, the husband responded in the affirmative. The husband
also testified that he and Smiley had discussed getting a divorce and that he had not
cooperated with Smiley in providing financial information to Probation.

                                           -6-
Smiley also relies on Bowles v. Russell, 127 S.Ct. 2366 (2007),6 for the proposition
that the federal courts possess “no authority to create equitable exceptions to
jurisdictional requirements.” Smiley cites to decisions which hold that Rule 35 sets
a jurisdictional time limit which cannot be extended. See United States v. Higgs, 504
F.3d 456 (3d Cir. 2007); United States v. Lopez, 26 F.3d 512 (5th Cir. 1994). The
Eighth Circuit has also held that more than seven days after the imposition of a
defendant’s sentence, a district court has no jurisdiction to alter a sentence, even if the
sentence was legally erroneous. See United States v. Austin, 217 F.3d 595, 597(8th
Cir. 2000)(interpreting former FED. R. CR. P. 35 ( c) which is now set forth in FED.
R. CR. P. 35(a)).

       In Carlisle v. United States, the Supreme Court held that a district court did not
have the authority to grant a defendant's untimely motion for judgment of acquittal.
The Supreme Court reasoned that FED. R. CR. P. 29 with its 7-day time limit was
plain and unambiguous and that the district court had no authority to grant an untimely
postverdict motion for judgment of acquittal. The Court rejected the defendant’s
argument that the district court had acted within its “inherent supervisory power” so
as to “circumvent or conflict with the Federal Rules of Criminal Procedure.” 517 U.S.
at 425-25. Although the Supreme Court acknowledged its earlier recognition of a
court’s inherent powers in Chambers v. NASCO, Inc., 501 U.S. 32 (1991), the Court
in Carlisle rejected reliance on the court’s inherent power because it was “unaware of
any ‘long unquestioned’ power of federal district courts to acquit for insufficient
evidence sua sponte, after return of a guilty verdict.” 517 U.S. at 426.

       In Chambers v. NASCO, Inc., 501 U.S. 32 (1991), the Supreme Court held that
a district court, properly invoked its inherent power in assessing attorney's fees and
related expenses as a sanction for a party's bad-faith conduct in a diversity action. In

      6
       In this habeas corpus action the Supreme Court ruled it would no longer
recognize the unique circumstances exception to excuse an untimely filing of a notice
of appeal.

                                           -7-
reaching this holding the Court rejected an argument that the Federal Rules of Civil
Procedure displaced the inherent power of the courts to maintain an orderly and
expeditious disposition of the cases before them. 501 U.S. at 43-44. The Court noted
that of “particular relevance” to its holding was the inherent power of federal courts
to vacate their own judgments upon proof that a fraud has been perpetrated upon the
court. The Court quoted Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238,
245-46 (1944), in recognizing the “‘historic power of equity to set aside fraudulently
begotten judgments’”in order to maintain the integrity of the courts and safeguard the
public. The Court in Chambers also recognized a court’s power to conduct an
independent investigation in determining whether it has been the victim of fraud. 501
U.S. at 44. However, the Court in Chambers also admonished that because of the
potency of inherent powers these powers must be exercised with restraint and
discretion. Id.

       The Government challenges Smiley’s contention that the inherent power to
vacate a judgment procured by fraud, which was recognized in Chambers, exists only
in the civil context. The Government cites to decisions in which courts have held that
district courts have the inherent power to correct criminal sentences which were
procured through fraud. See United States v. Gregg, No. 04-103, 2006 WL 2850564
(E.D. Pa., Oct. 3, 2006)(order vacated in United States v. Washington, 2008 WL
5173327 (3rd Cir. Dec. 11, 2008)); United States v. Bishop, 774 F.2d 771 (7th Cir.
1985). In United States v. Bishop, the defendant had been convicted in federal district
court and his 3-year sentence was stayed pending appeal. The defendant was then
convicted in state court and sentenced to a 4-year sentence and an additional thirty-
year sentence under the state’s habitual offender statute. The defendant requested that
the federal sentence be modified to run concurrently with the thirty-four-year state
sentence. Although the state court subsequently vacated the habitual offender
conviction, the defendant failed to advise the federal district court that this conviction
was vacated, and the federal district court granted the modification and sentenced the



                                           -8-
defendant concurrently with the state sentence, based on the representation that the
defendant was serving a thirty-four-year state sentence.

       After the federal district court in Bishop learned that the defendant’s state
habitual offender conviction had been vacated it contacted the Government and held
an evidentiary hearing concerning the matter. The district court then found that the
defendant had intentionally misrepresented the status of his state convictions and
misled the federal district court into believing that he was subject to a sentence of
thirty-four years rather than the four-year sentence he was actually serving in the state
penitentiary. The district court then vacated its order modifying the defendant’s
sentence and reinstated its earlier sentence. 774 F.2d at 772-773.

       At the time the district court in Bishop vacated the order modifying the
defendant’s sentence FED. R. CR. P. 35(b) provided that the court may amend the
sentence within 120 days after the sentence is imposed. Since the 120-day period had
expired by the time the court had reimposed his original sentence, the defendant
contended the district court was without jurisdiction under Rule 35(b) to reimpose his
sentence. The Seventh Circuit concluded that this argument was faulty in that it
ignored the district court's inherent power to correct a judgment procured through
fraud. 774 F.2d at 773 (citing Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322
U.S. 238 (1944)). The Seventh Circuit further reasoned that the fact the case involved
a criminal sentencing process rather than a civil proceeding, such as in Hazel-Atlas,
was inconsequential. The Seventh Circuit explained, “It is the power of the court to
correct the judgment gained through fraud which is determinative and not the nature
of the proceeding in which the fraud was committed.“ 774 F.2d at 774 n.5.

       Although Hazel-Atlas involved a civil rather than a criminal case, the United
States Supreme Court later commented on the power of a court to correct a judgment
gained through fraud in a criminal case, United States v. Smith, 331 U.S. 469 (1947).



                                          -9-
In Smith the Supreme Court construed Rule 33 of the Federal Rules of Criminal
Procedure and held that because of the 5-day limit on making a motion for new trial
under that rule it was improper for the district court to grant a new trial on its own
motion more than five days after conviction and after affirmance by the Circuit Court
of Appeals. The Supreme Court further held that the Government was entitled to writs
of mandamus and prohibition to require vacating the order granting the new trial.
Although the Supreme Court found that the district court erred in untimely granting
a new trial in Smith based only upon the defendant’s complaints of errors and
irregularities during his trial, the Supreme Court noted, “Of course, the federal courts
have power to investigate whether a judgment was obtained by fraud and make
whatever modification is necessary, at any time.” 331 U.S. at 476 n.4 (citing Univeral
Oil Products Co. V. Root Refining Co., 328 U.S. 575 (1946)).

       Recently the Third Circuit Court of Appeals issued a decision in United States
v. Washington, 2008 WL 5173327 (3rd Cir. Dec. 11, 2008), which differs with the
Seventh Circuit’s holding in Bishop and the statement in Smith. The decision in
Washington effectively overrules United States v. Gregg, 2006 WL 2850564 E.D. Pa.,
Oct. 3, 2006), a case relied upon by the government in the case at hand. In the
Washington case, the defendant repeatedly misrepresented himself as “Kennard
Gregg,” and the misrepresentation was not disclosed until after the time for correcting
a sentence had passed under FED. R. CR. P. 35(a). Based on this misrepresentation,
“Gregg's” criminal history category was two and the total offense level was nine,
yielding a Sentencing Guidelines range of six to twelve months. Had Washington not
misrepresented his identity and had his criminal history been properly calculated using
his true record, his criminal history category would have been four and his offense
level nine, yielding a Guidelines range of twelve to eighteen months. The district
court issued an order vacating its original sentence and directing resentencing based
on fraud upon the court. The Third Circuit issued a writ of mandamus instructing the
district court to vacate its order vacating the original sentence.



                                         -10-
       In Washington, the Third Circuit held that a district court may modify its own
criminal sentence only under specific statutory circumstances set forth in FED. R. CR.
P. 35(a) and 18 U.S.C. § 3582(c). The Third Circuit further held that a district court
lacks inherent power sua sponte to vacate its own criminal sentence based on fraud
upon the court. The Third Circuit reasoned that “to the extent there might have at one
point been inherent power in the court [to vacate a criminal sentence based on fraud
upon the court], such power was abrogated by Congress pursuant to § 3582(c) and
Federal Rule of Criminal Procedure 35(a).” 2008 WL 5173327 at *8.

       Recently, this Court was asked to remand a case so the district court could
vacate the sentence it imposed based on a defendant's misrepresentations and so the
district court could resentence the defendant during the pendency of his appeal. In
denying this request, this Court questioned “whether the district court has jurisdiction
to resentence a defendant in the absence of statutory authority to do so.” United States
v. Fincher, 538 F.3d 868, 878 (8th Cir.2008).

       We need not and will not determine in this case whether a district court has a
historically recognized inherent power to vacate criminal judgments procured by fraud
or whether such power has been abrogated by Congress, because even if this inherent
power still exists any misrepresentations made in this case would not justify vacating
the sentence. The power to vacate judgments procured by fraud must be exercised
with restrain and discretion, see Chambers 501 U.S. at 44, and with consideration of
the long established general rule that prohibits the alteration or setting aside of
judgments after the expiration of the term when such judgments were finally entered.
See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322U.S. at 244. It must be shown
by clear and convincing evidence that there was fraud on the court with all doubts
being resolved in favor of the finality of a judgment. Bulloch v. United States, 763
F.2d 1115, 1121 (10th Cir. 1985). In addition, it is necessary to examine the nature
of the alleged misrepresentation that is the impetus for vacating a judgment procured
by fraud.

                                         -11-
        Fraud on the court which justifies vacating a judgment is narrowly defined as
“fraud which is directed to the judicial machinery itself and is not fraud between the
parties or fraudulent documents, false statements or perjury.” Bulloch at 1121; see
also, United States v. Buck, 281 F.3d 1336, 1342 (10th Cir. 2002). The standard for
fraud on the court in the context of the court exercising its inherent powers under the
principles of Hazel-Atlas Glass is higher and distinct from the more general standard
for fraud under FED. R. CIV. P. 60(b)(3). A finding of fraud on the court under this
standard “is justified only by the most egregious misconduct directed to the court
itself, such as bribery of a judge or jury or fabrication of evidence by counsel . . . .”
Greiner v. City of Champlin, 152 F.3d 787, 789 (8th Cir. 1998)(quoting Landscape
Properties, Inc. V. Vogel, 46 F.3d 1416, 1422 (8th Cir. 1995)). Rules arising from the
inherent powers of the courts have evolved to become exceedingly narrow, and to
require that the power to set aside a judgment based upon fraud on the court involve
the court actually being deceived by the misrepresentation. See Joseph J. Anclien,
Broader is Better: The Inherent Powers of Federal Courts, 64 N. Y. U. Ann. Surv.
Am. L., 37, 69 (2008).

       While we do not condone anything less than full disclosure for defendants
submitting financial forms as required by 18 U.S.C. § 3664(d)(3),7 we do not believe
that the nondisclosures that occurred prior to the original sentencing in Smiley’s case
constitute the “most egregious misconduct” so that the value of vacating the sentence
outweighed the general principle supporting finality of judgments. The failure of

      7
          18 U.S.C. § 3664(d)(3) provides:
               Each defendant shall prepare and file with the probation officer an
              affidavit fully describing the financial resources of the defendant,
              including a complete listing of all assets owned or controlled by the
              defendant as of the date on which the defendant was arrested, the
              financial needs and earning ability of the defendant and the defendant's
              dependents, and such other information that the court requires relating
              to such other factors as the court deems appropriate.


                                          -12-
Smiley to report the fractional interest in the Florida property that was subject to
foreclosure proceedings as well as the failure to report judgments against her did not
influence the district court to sentence outside the Sentencing Guidelines.8 The debt
versus equity information set forth in the original presentence report as well as the
obviously chaotic state of Smiley’s finances reveals the unlikelihood of Smiley paying
restitution even though Smiley overstated her net worth.

       After Counsel at the original sentencing hearing advised the district court that
Smiley was committed to repaying every dime to her victims, the district court asked
if there was a plan for doing so, and counsel advised that Smiley intended to work
and that she was in a position to liquidate assets and secure additional loans. The
district court was justifiably troubled about that misrepresentation. Smiley’s
sentencing memorandum, however, focused on Smiley’s community service,
commitment to family and unlikelihood of recidivism, not the ability or intention to
make restitution, as the basis for a variance. In her allocution at the original
sentencing Smiley made no reference to making restitution. Significantly, as was
previously noted, the district court sentenced near the middle of the Guidelines range
and did not grant the request for a variance.

       Also, the record does not support by clear and convincing evidence the finding
that Smiley misrepresented the relationship with her husband since the record
establishes that Smiley’s husband confirmed with the presentence writer that he and
his wife had been separated for a time. In addition, the husband testified he had been
uncooperative with Smiley in providing financial information to Probation. Assuming
without deciding that the district court had the inherent power to set aside the original
sentence, it was still an abuse of discretion to vacate the original sentence since the
heightened standard for fraud on the court was not met in this case. The order

      8
       The financial condition of Smiley did not impact the restitution that was owed
under the Mandatory Victims Restitution Act since restitution is mandatory. See
United States v. Miller, 419 F.3d 791, 794 (8th Cir. 2005).

                                          -13-
vacating the original sentence and the subsequent sentence of seventy-two months of
imprisonment are reversed and the matter is remanded with instruction to reinstate the
original sentence.

Disputed Restitution Amounts
       Smiley stipulated to the restitution amounts owed to all but seven victims.
Smiley contends that the government failed to prove by a preponderance of evidence
the disputed restitution amounts for these seven victims and claims that the Postal
Inspector who testified regarding the restitution owed these victims accepted the
amounts these victims stated they were owed without conducting an independent
investigation of the amounts owed.

       The government has the burden of proving the restitution amount by a
preponderance of the evidence. United States v. Young, 272 F.3d 1052, 1056 (8th Cir.
2001). We review for clear error the district court's determination of the amount of
restitution. United States v. Fogg, 409 F.3d 1022, 1028 (8th Cir. 2005). The transcript
of the July 16, 2007 restitution hearing reveals that when the Postal Inspector
interviewed the victims in issue regarding their losses for restitution purposes, most
of these victims had reviewed their own bank records, records received from Smiley,
and correspondence and notices from the Internal Revenue Service. Also, the victims
were knowledgeable in business and tax matters, and the Postal Inspector had
received records and information from some of the victims’ legal representatives. In
addition, the Postal Inspector instructed the victims to calculate their losses without
adding in penalties and interest. The Government met its burden in proving the
amount of restitution, and there is no clear error in the district court's determination
of the amount of restitution.

                                      III. Conclusion
      We conclude that even if a district court possesses a historically recognized
inherent power to vacate a criminal judgment procured by fraud, the conduct in issue

                                         -14-
which occurred before the original sentencing in this case does not fall within the
narrow definition of “fraud upon the court” which is required to vacate a judgment.
We reverse the order vacating the original sentence and the subsequent judgment
sentencing Smiley to seventy-two months of imprisonment, but affirm the district
court’s order of restitution.

COLLOTON, Circuit Judge, concurring in the judgment.

       Even assuming that a district court enjoys inherent power, in cases of fraud on
the court, to vacate a judgment in a criminal case outside the limits established by 18
U.S.C. § 3582(c) and Federal Rule of Criminal Procedure 35(b), the court explains
that “fraud on the court” must be “narrowly defined as ‘fraud which is directed to the
judicial machinery itself and is not fraud between the parties or fraudulent documents,
false statements or perjury.’” Ante, at 12 (quoting United States v. Bulloch, 763 F.2d
1115, 1121 (10th Cir. 1985)); see also United States v. Throckmorton, 98 U.S. 61,
65-67 (1878) (“The doctrine is . . . well settled that the court will not set aside a
judgment because it was founded on a fraudulent instrument, or perjured evidence, or
for any matter that was actually presented and considered in the judgment assailed.”);
Commentary, Effect of Rule 60b on Other Methods of Relief from Judgment, 4 Fed.
Rules Serv. 942, 945 (1941) (“[B]y the majority view intrinsic fraud, such as perjury
or use of falsified documentary evidence, is not a ground for relief in federal courts.”).
Because the district court in this case relied exclusively on misrepresentations,
incomplete disclosures, and failures to disclose by Angela Smiley during the
pre-sentencing process and at her sentencing hearing, I concur in the court’s judgment.
Even application of the inherent power available in civil cases would not authorize
the district court to vacate the judgment in this case, because there was no “fraud on
the court” as defined in that context. I express no view on whether the evidence is
sufficient to establish clearly and convincingly that Smiley made misrepresentations
to the district court. I agree with the court’s disposition of Smiley’s challenge to the
district court’s order of restitution.
                           ______________________________


                                          -15-
