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Media Alerts - Bereano v. United States - Fourth Circuit
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March 18, 2013
  Bereano v. United States - Fourth Circuit
Headline: Influential Lobbyist Bruce Bereano's Fraud Convictions Affirmed.

Area of Law: Criminal

Issue Presented: Whether coram nobis relief should be granted when part of the jury instructions that were given at trial are later deemed unconstitutional.

Brief Summary: Bruce Bereano was convicted of mail fraud in 1994. During trial, the judge instructed the jury that they could convict on either or both of the prosecution's theories. The jury found Bereano guilty by returning a general, non-specific verdict. In 2010, the Supreme Court decided Skilling v. United States. That case invalidated one of the theories relied upon by the prosecution at Bereano's trial. Bereano sought to have his conviction vacated through a writ of error coram nobis. The Fourth Circuit affirmed the district court's finding that the Skilling error was harmless beyond a reasonable doubt and did not qualify for coram nobis relief.

Extended Summary: In 1994, Bruce Bereano was convicted of eight counts of mail fraud. His convictions stemmed from a scheme in which he had his employees and family members make donations to his political action committee. Bereano reimbursed the donors for these payments using money he collected after falsely billing his clients for "legislative services.". The prosecution presented two theories of mail fraud during the trial. The "pecuniary fraud" theory alleged that Bereano defrauded his clients of money by means of false and fraudulent pretenses. The "honest services fraud" theory alleged that Bereano defrauded his clients of their right to his loyal, faithful, honest, and unbiased service as their agent. The judge informed the jury that they could convict Bereano on either or both of these theories. The jury returned a general verdict of guilty, and did not specify under which of the two theories they based the convictions.

In Skilling v. United States, the Supreme Court limited the use of the "honest services fraud" theory to cases that involved actual bribery or kickbacks. The Court ruled that it is a violation the Due Process Clause of the Fifth Amendment to apply the "honest services fraud" theory in cases other than those involving bribes and kickbacks.

Bereano based his coram nobis action on the Court's ruling in Skilling. He argued, and the Government conceded, that because his case involved no allegations of kickbacks or bribes, the jury instructions at his trial were unconstitutional because they allowed for a conviction based on a theory of honest services fraud. The Government contended that because Bereano's scheme was based on using the mail to defraud his client of money, the jury could not have convicted him of honest services fraud without finding him guilty of pecuniary fraud as well. The district court, denying Bereano's coram nobis request, agreed there was an unconstitutional Skilling error, but found that it was harmless beyond a reasonable doubt.

On review, the Fourth Circuit first noted that in order for coram nobis relief to be granted, there must be "an error of the most fundamental character," which "rendered the proceeding itself irregular and invalid." In determining whether the Skilling error in Bereano's jury instructions met the high standard for coram nobis relief, the Fourth Circuit applied harmless error review. The court said that relief will be denied whenever it concludes "beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." The court reasoned that the prosecution's evidence overwhelmingly showed that Bereano had schemed to commit pecuniary fraud by defrauding his clients of money. The Fourth Circuit concluded that, "no reasonable jury could have acquitted Bereano of pecuniary fraud for falsely billing his clients, but convicted him of honest services fraud for the same false billing scheme." The Fourth Circuit, thus, affirmed the district court's ruling that the error was harmless beyond a reasonable doubt.

To read the full opinion, please visit:

Panel: Judges King, Motz, and Diaz

Date of Issued Opinion: 02/08/13

Docket Number: No. 12-6417

Decided: Affirmed

Case Alert Author: Devin Farrelly

Counsel: ARGUED: Timothy Francis Maloney, JOSEPH, GREENWALD & LAAKE, PA, Greenbelt, Maryland, for Appellant. Leo Joseph Wise, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Matthew M. Bryant, JOSEPH, GREENWALD & LAAKE, PA, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Author of Opinion: King, J.

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/18/2013 03:46 PM     4th Circuit  

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