United States Court of Appeals

For the First Circuit

No. 11-1815

UNITED STATES OF AMERICA,

Appellee,

v.

RICHARD J. GEORGE,

Petitioner, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Boudin, Selya and Stahl,

Circuit Judges.

Bruce T. Macdonald for appellant.

S. Theodore Merritt, Assistant United States Attorney, with

whom Carmen M. Ortiz, United States Attorney, was on brief, for

appellee.

April 17, 2012
SELYA, Circuit Judge. A Hail Mary pass in American

football is a long forward pass made in desperation at the end of

a game, with only a small chance of success. The writ of error

coram nobis is its criminal-law equivalent. This appeal requires

us to explore the intricacies of the writ, sift through the

considerations that inform a determination to unleash that

extraordinary remedy, and assess the extent to which discretion can

influence a reviewing court's decision about coram nobis relief. 

We conclude that a flexible, common-sense approach to coram nobis

relief is warranted and that, in the last analysis, we have

discretion to withhold the remedy where the interests of justice so

dictate. Applying this principle to the case at hand, we affirm

the district court's denial of the writ.

I. BACKGROUND

From 1975 to 1995, petitioner-appellant Richard George

served as a first assistant clerk-magistrate of a Massachusetts

state court. In that capacity, he performed an array of

administrative tasks central to the court's operation, including

the issuance of search warrants.

In December of 1995, the government filed a one-count

information charging the petitioner with participation in a

conspiracy to commit honest-services wire fraud. See 18 U.S.C.

§§ 371, 1343, 1346. The information averred that the petitioner

had conspired to "participate in a scheme to defraud the

-2-
Commonwealth of Massachusetts of the intangible right of [his]

honest services . . ., and to cause the use of wire communications

in execution of this scheme." In support, the information stated

that the petitioner surreptitiously delivered blank search warrants

to one Michael Fosher, knowing that Fosher had no legitimate use

for them. Wire fraud came into play because Fosher had made at

least one interstate telephone call to the petitioner in

furtherance of the scheme.

The petitioner waived indictment, and the parties

immediately entered into a binding C-type plea agreement. See Fed.

R. Crim. P. 11(c)(1)(C). The agreement contemplated that the

petitioner would plead guilty to the information and that his

sentence would entail twenty months of imprisonment, a $10,000

fine, the standard $50 special assessment, and two years of

supervised release.

The recitals contained in the plea agreement and

presentence investigation report shed further light on the

underlying events. Those recitals made pellucid that Fosher and

several confederates had used the improperly obtained search

warrants to mount a series of robberies. For example, they would

pose as law enforcement officers executing a warrant, enter a drug

dealer's home, and abscond with his drugs and money. By the time

that the petitioner signed the plea agreement, nearly all of the

-3-
other miscreants involved in the scheme had pleaded guilty to

federal charges.

The district court accepted the plea and sentenced the

petitioner in accordance with the plea agreement. The petitioner

did not appeal, nor did he at any time seek habeas relief. See 28

U.S.C. § 2255. Rather, he served his incarcerative term, paid the

fine and special assessment, and completed two years of supervised

release on April 23, 1999.

The petitioner retired from state service prior to the

entry of his guilty plea, and on October 1, 1995, he began

receiving a monthly retirement stipend of $1,424.91, together with

lifetime health-care coverage. Those benefits continued throughout

his immurement and beyond. But in January of 2003, the state

retirement board (the Board) suspended his retirement benefits due

to his federal conviction. This decision was especially

disconcerting to the petitioner because the anticipated flow of

retirement benefits had been part and parcel of his plea bargain

strategy; his attorney had advised him that he would remain

eligible for his vested retirement benefits as long as he started

receiving them before he entered a guilty plea.

On October 29, 2004, the petitioner filed his first

petition for a writ of error coram nobis. He argued that his

conviction suffered from a fundamental defect in that the

government had failed to allege facts establishing all the elements

-4-
of the offense of conviction. The district court denied the

petition, finding no fundamental defect in the conviction. United

States v. George, 436 F. Supp. 2d 274, 277-79 (D. Mass. 2006). On

May 11, 2007, we summarily affirmed that ruling. See United States

v. George, No. 06-2010 (1st Cir. May 11, 2007) (unpublished). 

Shortly thereafter, the Board permanently revoked the petitioner's

pension and authorized the institution of proceedings to recoup

benefits paid in excess of the petitioner's aggregate contributions

to the retirement system.1

In 2010, the Supreme Court truncated the reach of the

statute proscribing honest-services fraud. See Skilling v. United

States, 130 S. Ct. 2896, 2928-34 (2010). The Court held that the

"intangible right of honest services," set out in 18 U.S.C. § 1346,

would be unconstitutionally vague unless it was limited to schemes

to defraud that involve bribes or kickbacks. Id. at 2933-34.

Because the government had failed to show that Skilling had engaged

in conduct involving bribery or kickbacks, the Court determined

that he "did not commit honest-services fraud." Id. at 2934.

As said, the petitioner had pleaded guilty to an

information that charged conspiracy to commit honest-services wire

fraud. The information did not contain any mention of bribes or

At the time of his retirement, the petitioner had $65,521.56 1

in his retirement account. By the time that the Board halted

pension payments, the Commonwealth had paid him $114,503.25. The

record is silent as to the efficacy of any recoupment efforts.

-5-
kickbacks. The petitioner seized on the Skilling decision and

filed his second petition for a writ of error coram nobis. In this

petition, he insisted that, under Skilling, there was a fundamental

error in his conviction.

The district court denied the petition. United States v.

George, No. 95-10355, 2011 WL 2632321, at *4 (D. Mass. June 30,

2011). It analyzed the petitioner's claim through the prism of a

tripartite test requiring a petitioner to "1) explain h[is] failure

to seek relief from judgment earlier, 2) demonstrate continuing

collateral consequences from the conviction, and 3) prove that the

error is fundamental to the validity of the judgment." United

States v. Sawyer, 239 F.3d 31, 38 (1st Cir. 2001). The court found

the timeliness requirement satisfied and agreed with the petitioner

that, in light of Skilling, a fundamental error had occurred. See

George, 2011 WL 2632321, at *2. Nevertheless, the court determined

that the cessation of the petitioner's retirement benefits did not

constitute a continuing collateral consequence sufficient to

justify the extraordinary remedy sought. Id. at *2-3 (citing

United States v. Craig, 907 F.2d 653, 660 (7th Cir. 1990)).

Consequently, it denied coram nobis relief. This timely appeal

followed.

-6-
II. ANALYSIS

This appeal requires us to revisit the tripartite test

that we have used in the past for coram nobis cases. We start by

explicating the applicable law and then proceed to the merits.

A. The Legal Landscape.

The writ of error coram nobis is of ancient lineage,

tracing its roots to sixteenth century English common law. See

Sawyer, 239 F.3d at 37. Its original purpose was to promote

respect for the judicial process by enabling a court to correct

technical errors in a final judgment previously rendered. See

United States v. Denedo, 129 S. Ct. 2213, 2220 (2009). In the

United States, the office of the writ has expanded well beyond the

reopening of a final judgment to correct technical errors. See id. 

In federal criminal cases, the writ is now available as a remedy of

last resort for the correction of fundamental errors of fact or

law. Trenkler v. United States, 536 F.3d 85, 93 (1st Cir. 2008).

The authority to grant coram nobis relief derives from

the All Writs Act, 28 U.S.C. § 1651(a), which empowers federal

courts to "issue all writs necessary or appropriate in aid of their

respective jurisdictions and agreeable to the usages and principles

of law." There is a generally accepted understanding that the All

Writs Act imbues courts with flexible, see Sprint Spectrum L.P. v.

Mills, 283 F.3d 404, 413 (2d Cir. 2002), inherently equitable, see

Clinton v. Goldsmith, 526 U.S. 529, 537 (1999), powers. These

-7-
powers are anchored in informed judicial discretion. See Roche v.

Evap'd Milk Ass'n, 319 U.S. 21, 25-26 (1943); In re Cargill, Inc.,

66 F.3d 1256, 1260 (1st Cir. 1995); Paramount Film Distrib. Corp.

v. Civic Ctr. Theatre, Inc., 333 F.2d 358, 360 (10th Cir. 1964). 

An emphasis on restraint is ingrained: the extraordinary nature of

the writs implies that they should be issued sparingly. See In re

Cargill, 66 F.3d at 1259; In re Sch. Asbestos Litig., 977 F.2d 764,

772 (3d Cir. 1992).

The metes and bounds of the writ of coram nobis are

poorly defined and the Supreme Court has not developed an easily

readable roadmap for its issuance. See Denedo, 129 S. Ct. at 2220.

But the Court has indicated that caution is advisable and that

"[c]ontinuation of litigation after final judgment . . . should be

allowed through this extraordinary remedy only under circumstances

compelling such action to achieve justice." United States v.

Morgan, 346 U.S. 502, 511 (1954). This emphasis on the interests

of justice is entirely consistent with the provenance and usage of

extraordinary writs generally. See, e.g., Bracy v. Gramley, 520

U.S. 899, 904 (1997); Burr & Forman v. Blair, 470 F.3d 1019, 1026

(11th Cir. 2006); Hartley Pen Co. v. U.S. Dist. Court, 287 F.2d

324, 328 (9th Cir. 1961).

The Supreme Court has always envisioned coram nobis as

strong medicine, not profligately to be dispensed. On the few

occasions post-Morgan that the Court has commented on coram nobis,

-8-
the Justices have stressed that there will rarely be situations

warranting the deployment of the writ. See, e.g., Denedo, 129 S.

Ct. at 2220 (remarking on the importance of limiting the writ to

truly extraordinary circumstances "so that finality is not at risk

in a great number of cases"); Carlisle v. United States, 517 U.S.

416, 429 (1996) (noting that "it is difficult to conceive of a

situation in a federal criminal case today where a writ of coram

nobis would be necessary or appropriate" (alterations and internal

quotation marks omitted)).

Given the Court's evident concerns, it is not surprising

that successful petitions for coram nobis are hen's-teeth rare.

Consequently, the courts of appeals have not yet developed anything

resembling a uniform approach to such relief.

In this circuit, we have formulated a tripartite test to

help guide our decisionmaking. Under it, a coram nobis petitioner

must explain his failure to seek earlier relief from the judgment,

show that he continues to suffer significant collateral

consequences from the judgment, and demonstrate that the judgment

resulted from an error of the most fundamental character. See

United States v. Barrett, 178 F.3d 34, 56 n.20 (1st Cir. 1999);

Hager v. United States, 993 F.2d 4, 5 (1st Cir. 1993) (Breyer,

C.J.). Other courts of appeals have enumerated comparable

requirements. See, e.g., United States v. Sloan, 505 F.3d 685, 697

(7th Cir. 2007); United States v. Mandanici, 205 F.3d 519, 524 (2d

-9-
Cir. 2000); United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir.

1989).

Beyond these generalities, the case law has been uneven. 

For example, several courts have indicated that something more than

the stain of conviction is needed to show continuing collateral

consequences. See, e.g., Fleming v. United States, 146 F.3d 88,

90-91 & n.3 (2d Cir. 1998) (per curiam); United States v. Dyer, 136

F.3d 417, 429-30 & n.33 (5th Cir. 1998); Hager, 993 F.2d at 5;

United States v. Osser, 864 F.2d 1056, 1059-60 (3d Cir. 1988); see

also United States v. Keane, 852 F.2d 199, 203 (7th Cir. 1988)

(holding that continuing collateral consequences arise only in

situations where the disability is unique to a criminal

conviction). Other courts have indicated that continuing

collateral consequences invariably flow from a felony conviction

alone. See, e.g., United States v. Peter, 310 F.3d 709, 715-16

(11th Cir. 2002) (per curiam); Walgren, 885 F.2d at 1421; United

States v. Mandel, 862 F.2d 1067, 1075 & n.12 (4th Cir. 1988). Yet

another court has granted coram nobis relief without mentioning the

requirement. See Allen v. United States, 867 F.2d 969, 971-72 (6th

Cir. 1989).

The dispute over the collateral consequences requirement

is emblematic of a more general lack of jurisprudential uniformity. 

For instance, the courts of appeals typically place varying levels

of emphasis on other factors. When it is alleged that a federal

-10-
criminal statute does not reach certain conduct, some courts focus

narrowly on whether the record still sets out a crime, see, e.g.,

Peter, 310 F.3d at 711-16; Allen, 867 F.2d at 971-72, whereas other

courts focus on a wider universe, including whether the petitioner

had exhausted his rights to appeal, see, e.g., Osser, 864 F.2d at

1060-62; United States v. Travers, 514 F.2d 1171, 1176-79 (2d Cir.

1974) (Friendly, J.), and the interest of finality, see, e.g.,

Craig, 907 F.2d at 658; Osser, 864 F.2d at 1059.

Despite the myriad approaches that courts have taken, we

think there is a bellwether principle: "each attempted use of an

extraordinary writ in connection with post-conviction relief must

be judged on its own merits." Trenkler, 536 F.3d at 97. This is

especially true of coram nobis. A case-by-case approach is

preferable, with each decision about whether to grant or deny the

writ ultimately residing in the court’s sound discretion. It

follows that the tripartite test should not be administered

mechanically but, rather, in a flexible, common-sense manner. Even

if the test is satisfied, the court retains discretion over the

ultimate decision to grant or deny the writ. In other words,

passing the tripartite test is a necessary, but not a sufficient,

condition for the issuance of the writ. Additional circumstances,

not readily susceptible to facile categorization, may provide

adequate reason for a court, in the exercise of its discretion, to

-11-
stay its hand. See In re Cargill, 66 F.3d at 1260; In re Sch.

Asbestos Litig., 977 F.2d at 772.

The bottom line is that a writ of error coram nobis

should issue "only under circumstances compelling such action to

achieve justice." Morgan, 346 U.S. at 511. The devoir of

persuasion is on the petitioner: if he fails to convince the court

that the ends of justice will be served by granting such

extraordinary relief, the court may refrain from upsetting a

conviction that has long since become final.

Our emphasis on discretion treads a well-worn path. In

its seminal coram nobis decision the Supreme Court noted that the

writ may issue to correct factual errors only in "those cases where

the errors were of the most fundamental character; that is, such as

rendered the proceeding itself irregular or invalid." United

States v. Mayer, 235 U.S. 55, 69 (1914). The Morgan Court

reiterated this standard and added the caveat that the writ should

issue "only under circumstances compelling such action to achieve

justice." 346 U.S. at 511 (emphasis supplied). Consequently, it

is not enough for a coram nobis petitioner to show that he can

satisfy the elements of the tripartite test: he must also show that

justice demands the extraordinary balm of coram nobis relief. See

Hager, 993 F.2d at 5 (explaining that courts will use the writ of

error coram nobis "to set aside a criminal judgment only under

circumstances compelling such action to achieve justice" (internal

-12-
quotation marks omitted)); see also Barrett, 178 F.3d at 56 n.20;

Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996).

B. The Merits.

Against this backdrop we turn to the merits. The court

below rested its denial of the writ on a finding that the

petitioner failed to show sufficient continuing collateral

consequences stemming from his conviction. See George, 2011 WL

2632321, at *2-3.

The petitioner's most aggressive attack on this finding

is that the continuing collateral consequences requirement is not

a requirement at all. In his view, the insistence on such a

showing results from a misreading of the Supreme Court's opinion in

Morgan. He insists that we should find the stain of a felony

conviction itself sufficient to supplant any need for a further

showing of continuing collateral consequences.

It is settled law in this circuit that the continuing

collateral consequences requirement is part of the analytic

framework that pertains in coram nobis cases. See, e.g., Sawyer,

239 F.3d at 38; Hager, 993 F.2d at 5. Although we have not

explicitly set out what comprises a continuing collateral

consequence, we have clearly indicated that a conviction alone is

not enough. See Hager, 993 F.2d at 5. The petitioner's 2

In United States v. Michaud, 925 F.2d 37, 39 n.1 (1st Cir. 2

1991), we declined to address this point. Instead, we noted that a

contempt citation entered against the petitioner "for failure to

-13-
invitation that we scuttle this requirement runs contrary to the

well-settled tenet that newly constituted panels in a multi-panel

circuit are, with isthmian exceptions not pertinent here, bound by

prior on-point circuit precedent. See San Juan Cable LLC v. P.R.

Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010); United States v. Wogan,

938 F.2d 1446, 1449 (1st Cir. 1991). We therefore decline the

petitioner's invitation.

The petitioner's next argument is that the loss of his

monthly pension benefits should be considered a continuing

collateral consequence. We need not grapple with this argument. 

Even assuming arguendo that the continuing collateral consequences

requirement has been satisfied, he nonetheless has failed to 3

pay a $60,000 fine levied as part of his sentence" would satisfy

any continuing collateral consequences requirement. Id. 

Nevertheless, our statement two years later in Hager, 993 F.2d at

5, that the appellant has not "shown significant, continuing

collateral consequences flowing from his conviction," plainly

indicates that more than the mere fact of a conviction is required.

The answer to this question is not clear. The petitioner's 3

ongoing loss of monthly pension benefits, together with health-care

coverage, may satisfy one piece of the continuing collateral

consequences requirement, see Osser, 864 F.2d at 1060 (assuming

that loss of pension benefits is a continuing collateral

consequence), but such a conclusion is not foregone, see Craig, 907

F.2d at 660 (holding that "removal from [a] pension plan is a sunk

cost, much like a criminal fine"). In all events, there is a

second piece of the continuing collateral consequences requirement:

it must be shown that the court's decree will eliminate the claimed

collateral consequence and bring about the relief sought. See

United States v. Bush, 888 F.2d 1145, 1149 (7th Cir. 1989). The

record here offers no compelling reason to believe that vacating

the petitioner's conviction would automatically restore his

retirement benefits.

-14-
persuade us that the circumstances of his case demand coram nobis

relief. We elaborate below.

At the outset, we pause to clarify the standard of

review. In coram nobis cases, we afford de novo review to the

district court's legal conclusions and clear-error review to its

findings of fact. Sawyer, 239 F.3d at 36. The court below did not

conduct an evidentiary hearing and denied the writ as a matter of

law. Thus, our review here is plenary.

In this court, the government does not challenge the

district court's assumption that a fundamental error occurred. 

This tacit concession poses no barrier to our full consideration of

this issue. See United States v. Borrero-Acevedo, 533 F.3d 11, 15

n.3 (1st Cir. 2008) (explaining that "[t]his court is not bound by

[the government's] concessions" in a criminal case). Our inquiry

into the fundamental error requirement therefore reduces to whether

the petitioner has demonstrated "an error of 'the most fundamental

character.'" Hager, 993 F.2d at 5 (quoting Morgan, 346 U.S. at

512).

The petitioner's conviction resulted from a guilty plea. 

Undeniable advantages, such as limiting exposure to punishment,

flowed from this decision. The flip side is that (with limited

exceptions not applicable here) the unconditional guilty plea

waived virtually all objections and defenses for purposes of direct

appeal. See United States v. González-Mercado, 402 F.3d 294, 298

-15-
(1st Cir. 2005); United States v. González, 311 F.3d 440, 442 (1st

Cir. 2002). The petitioner could have challenged the legal

definition of honest-services fraud then and there but waived that

right by opting instead to enter into a plea bargain. This

decision alone counts against finding an error of the most

fundamental character. Cf. Osser, 864 F.2d at 1060-62 (stating

that the appellant could not raise in his coram nobis petition an

argument that he failed to raise on direct appeal); Travers, 514

F.2d at 1177 (Friendly, J.) (limiting its decision to grant coram

nobis relief "to defendants who . . . had gone through the full

appellate process").

The interest of finality, always important in criminal

cases, is of heightened concern when a conviction arises from a

guilty plea. See Bousley v. United States, 523 U.S. 614, 621

(1998); Blackledge v. Allison, 431 U.S. 63, 71-72 (1977). While

constitutional questions about whether the plea was knowing and

intelligent may be susceptible to review, see United States v.

Jimenez, 512 F.3d 1, 3-4 (1st Cir. 2007); United States v. GandiaMaysonet, 227 F.3d 1, 3 (1st Cir. 2000), even those questions, if

not raised below, are subject only to plain-error review. See

Jimenez, 512 F.3d at 3-4. Such review is largely a matter of

discretion. See United States v. Olano, 507 U.S. 725, 735-36

(1993); United States v. Kinsella, 622 F.3d 75, 83 (1st Cir. 2010).

-16-
The limitations on collateral attacks of guilty pleas are

even greater. See Bousley, 523 U.S. at 621-24. These limitations

are most familiarly associated with attempts to secure habeas

corpus relief. When a defendant seeks to vacate a guilty-plea

conviction by way of coram nobis, great caution is warranted.

Because custody no longer attaches and liberty is no longer at

stake, an inquiring court should pay particular attention to

whether there is "some . . . basis for thinking that the defendant

is at least arguably guilty." Gandia-Maysonet, 227 F.3d at 6.

In response to the petitioner's original coram nobis

petition, the district court plausibly determined that a factual

basis existed for the conspiracy conviction. George, 436 F. Supp.

2d at 277-79. The petitioner now resurrects this same argument in

light of Skilling, contending that he stands convicted of an

offense that is not criminal. But Skilling did not invalidate the

definition limned in 18 U.S.C. § 1346 ("[T]he term 'scheme or

artifice to defraud' includes a scheme or artifice to deprive

another of the intangible right of honest services."); it merely

clarified that prosecutions under statutes incorporating that

definition require evidence of bribes or kickbacks. 130 S. Ct. at

2933-34.

Viewed from this perspective, the petitioner's argument

is very narrow. He does not say that no bribes or kickbacks

occurred; he merely says that the record before us contains no such

-17-
evidence. He does nothing to dispel the obvious concern that the

conspiracy in which he was involved may have entailed conduct still

criminal under Skilling.

This narrow argument overlooks the reality that the

factual insufficiency about which the petitioner complains may well

have resulted from his own decision to minimize his exposure and

plead guilty as soon as practicable. Had he put the government to

its burden at trial, a substantially more robust factual record

would doubtless have been developed. Having secured a plea, it may

well have been the best use of the government's finite

prosecutorial resources to put limited effort into establishing

anything more than the bare elements of the plea-bargained crime.

This is even more probable because the petitioner's prosecution

came after most of the other coconspirators had entered guilty

pleas.

To be sure, the record in this case contains no direct

evidence of bribes. At most, however, the question of whether or 4

not bribes took place remains unresolved. The record makes

manifest that the petitioner passed out search warrants like

popsicles in July to a person whom he knew had no legitimate use

for them. Common sense strongly suggests that the petitioner — who

risked his reputation, his job, and his liberty by conspiring with

Although we acknowledge that Skilling requires either bribes 4

or kickbacks, for ease in exposition we limit our subsequent

discussion to bribes.

-18-
Fosher — must have received some sort of emolument to make his

trouble worthwhile. The law does not require a court to blind

itself to the obvious, and it would be tooth-fairy odd for the

petitioner to have handed out blank warrants in the absence of a

quid pro quo. In these uncertain circumstances, a Skilling error

cannot readily be classified as an error of the most fundamental

character.

Words have meaning, and an error "of the most fundamental

character," Morgan, 346 U.S. at 512 (internal quotation marks

omitted), must denote something more than an error simpliciter. At

the very least, the error must be more than a factual insufficiency

that the petitioner's voluntary decisions may have caused.

Such reasoning has special force where, as here, a

challenger is asking us to defenestrate a judgment that became

final long ago. See Denedo, 129 S. Ct. at 2223 (explaining that

"judgment finality is not to be lightly cast aside; and courts must

be cautious so that the extraordinary remedy of coram nobis issues

only in extreme cases"); Trenkler, 536 F.3d at 100 (similar). The

further a case progresses through the remedial steps available to

a criminal defendant, the stiffer the requirements for vacating a

final judgment. Thus, direct review is more defendant-friendly

than post-judgment review, see United States v. Frady, 456 U.S.

152, 165-66 (1982), and an initial habeas petition is easier for a

criminal defendant to litigate than a successive one, see Trenkler,

-19-
536 F.3d at 100. The writ of error coram nobis lies at the far end

of this continuum. Logically, then, when a defendant seeks to

vacate a guilty-plea conviction by way of coram nobis, red flags

accompany that request. Cf. Denedo, 129 S. Ct. at 2220

(admonishing that coram nobis relief should be cabined "so that

finality is not a risk in a great number of cases").

This brings the matter of our discretion front and

center. The petitioner here has not persuaded us that the

circumstances of this case warrant an affirmative exercise of that

discretion. The petitioner's strategic decisions (his waiver of

indictment, his immediate entry into a plea agreement, and his

eschewal of both direct review and habeas review) have stifled the

development of a full record, and common sense argues powerfully

that culpable conduct likely took place. The petitioner has made

the narrowest of arguments and has done nothing to dispel this

inference.

Each request for a writ of error coram nobis must be

judged on its own facts. Even if we assume for argument's sake

that the petitioner has satisfied the tripartite test, we know of

no binding authority that would compel us, when making an

essentially equitable determination regarding the appropriateness

of extraordinary relief, to grant coram nobis. When all is said

and done, issuing or denying a writ of error coram nobis must hinge

on what is most compatible with the interests of justice, see id.;

-20-
Morgan, 346 U.S. at 511, and our discretion must be guided by that

inquiry.

We think that the reasons why we decline to exercise our

discretion favorably to the petitioner are apparent. It is

difficult to understate either the wrongfulness or the criminal

character of what the petitioner himself admits to having done.

That conduct comprises a clear violation of his obligations under

the oath taken by him as an official of the Massachusetts court

system. The conduct — handing over blank warrants for improper

purposes on at least two separate occasions — also comprises a

brazen and reprehensible misuse of his official authority. It in

all likelihood violated a number of state criminal statutes, and it

also violated the federal fraud statute as its honest services

component was understood at the time (even if one further likely

fact — the bribe — was not included in the plea agreement and

colloquy because not then deemed necessary). Granting relief in

these circumstances would be both a misuse of our authority under

the All Writs Act and a perversion of the writ of error coram

nobis. In the end, the writ is designed to do justice, not to

facilitate a miscarriage of justice.

The petitioner has a fallback position. He strives to

convince us that because Skilling, 130 S. Ct. at 2933-34, requires

proof of bribes or kickbacks for honest-services fraud, and the

information to which he pleaded includes no such allegation, the

-21-
district court was without jurisdiction to accept his plea. We are

not persuaded.

Subject matter jurisdiction refers to a court's power,

whether constitutional or statutory, to adjudicate a case. United

States v. Cotton, 535 U.S. 625, 630 (2002). Congress has given

federal district courts original jurisdiction over "all offenses

against the laws of the United States." 18 U.S.C. § 3231. Thus,

if an indictment or information alleges the violation of a crime

set out "in Title 18 or in one of the other statutes defining

federal crimes," that is the end of the jurisdictional inquiry.

González, 311 F.3d at 442; see Hugi v. United States, 164 F.3d 378,

380 (7th Cir. 1999).

Although jurisdiction in the federal criminal context

lends itself to straightforward analysis, courts sometimes have

used the term colloquially. Such usages have caused some

confusion. See Eberhart v. United States, 546 U.S. 12, 13-19

(2005) (per curiam); Cotton, 535 U.S. at 630-31. Indeed, this

"less than meticulous" practice, Eberhart, 546 U.S. at 16, has

given the word "jurisdiction" a "chameleon-like quality," Prou v.

United States, 199 F.3d 37, 45-46 (1st Cir. 1999).

The case on which the petitioner principally relies in

support of his jurisdictional argument is a paradigmatic example of

this phenomenon. In United States v. Rosa-Ortiz, 348 F.3d 33, 36

(1st Cir. 2003), we stated that a district court "lacks

-22-
jurisdiction to enter a judgment of conviction when the indictment

charges no offense under federal law." The petitioner seizes upon

this language.

Rosa-Ortiz cannot carry the weight that the petitioner

loads upon it. That opinion dealt with an instance in which the

indictment was factually insufficient. Id. at 36-42. Supreme

Court precedent makes transparently clear that an indictment's

factual insufficiency does not deprive a federal court of subject

matter jurisdiction. See Cotton, 535 U.S. at 630-31; Lamar v.

United States, 240 U.S. 60, 64-65 (1916) (Holmes, J). "[A]

district court has jurisdiction of all crimes cognizable under the

authority of the United States[,] and the objection that the

indictment does not charge a crime against the United States goes

only to the merits of the case." Cotton, 535 U.S. at 630-31

(quoting Lamar, 240 U.S. at 65) (alterations and internal quotation

marks omitted); accord Vanwinkle v. United States, 645 F.3d 365,

369 (6th Cir. 2011); United States v. Todd, 521 F.3d 891, 894-95

(8th Cir. 2008); United States v. Delgado-Garcia, 374 F.3d 1337,

1341-42 (D.C. Cir. 2004). Viewed in this light, the Rosa-Ortiz

court's statement must be regarded as an awkward locution. That

locution used the word "jurisdiction" to refer to what the court

considered a non-waivable defect, see United States v. Ceballos,

302 F.3d 679, 691-92 (7th Cir. 2002), not to the district court's

power to adjudicate the case.

-23-
The bottom line is that Skilling has little or nothing to

do with the jurisdictional inquiry. The opinion in Skilling merely

clarifies that to convict someone of honest-services fraud, a

factual showing of bribery or kickbacks is compulsory. While this

holding rendered the instant information factually insufficient,

see Skilling, 130 S. Ct. at 2933-34, it did not divest the district

court of subject matter jurisdiction over the case. See Cotton,

535 U.S. at 631; Lamar, 240 U.S. at 64-65; González-Mercado, 402

F.3d at 300-01.

III. CONCLUSION

We need go no further. In a coram nobis case, the

ultimate question is whether the circumstances favor granting the

writ in order to achieve justice. See Morgan, 346 U.S. at 511.

When it appears questionable that an error of the most fundamental

character has transpired and it seems dubious that granting the

writ will promote the interests of justice, a federal court should

decline to exercise its discretion so as to disturb a judgment that

has long since become final. So it is here.

Affirmed.

-24-