United States District Court, M.D. Louisiana
MAURICE HICKS, JR. JUDGE.
George Grace (“Grace”) is before the Court on a
Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255 (Record Document 344) and an Amended
Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255 (Record Document 348). For the reasons set
forth below, the motions are DENIED.
proceedings began in 2010, when Grace was originally indicted
on eleven counts. See Record Document 1. In 2011,
the Government filed a Superseding Indictment (the
“Indictment”) (Record Document 24), which
included 13 counts. Grace was charged with racketeering,
bribery, obstruction of justice, fraud, extortion, making
false statements to the FBI, and use of an interstate
facility in aid of racketeering. These charges stemmed from
Grace's corrupt conduct during his tenure as the mayor of
the City of St. Gabriel, Louisiana. A lengthy trial began on
January 23, 2012. Following closing arguments, the Court
charged the jury. Grace did not object to the Court's
jury instructions. See Record Document 281-3 at 299.
jury returned a guilty verdict on seven counts: Count 1
(RICO), Count 6 (obstruction of justice), Count 7 (false
statements), Count 8 (federal program bribery), Count 9 (mail
fraud), Count 11 (wire fraud), and Count 13 (use of an
interstate facility in aid of racketeering). The Court then
sentenced Grace to 264 months imprisonment. See
Record Document 268.
timely appealed several aspects of his conviction and
sentence to the Fifth Circuit. The Fifth Circuit rejected all
of Grace's arguments regarding his conviction. It did,
however, vacate the Court's sentence and remand for
re-sentencing, such that this Court could recalculate the
appropriate loss amount. See United States v. Grace,
568 Fed.Appx. 344 (5th Cir. 2014). The Court re-sentenced
Grace, again to 264 months imprisonment. See Record
Document 324. Grace now seeks to collaterally attack his
conviction and sentence under 28 U.S.C. § 2255 on
multiple grounds. The Court analyzes each of Grace's
§ 2255 Standard
U.S.C. § 2255(a) provides a prisoner four grounds upon
which he may seek relief from his sentence: (1) “that
the sentence was imposed in violation of the Constitution or
laws of the Untied States;” (2) “that the court
was without jurisdiction to impose such a sentence;”
(3) “that the sentence was in excess of the maximum
authorized by law;” or (4) that the sentence is
“otherwise subject to collateral attack.” If a
court finds that any of the four grounds exist, the court
“shall vacate and set the judgment aside and shall
discharge the prisoner or resentence him or grant a new trial
or correct the sentence as may appear appropriate.” 28
U.S.C. § 2255(b). Relief under § 2255 is
“reserved for transgressions of constitutional rights
and for a narrow range of injuries that could not have been
raised on direct appeal and would, if condoned, result in a
complete miscarriage of justice.” United States v.
Acklen, 47 F.3d 739, 741 (5th Cir. 1995).
claim not raised on direct appeal is considered procedurally
defaulted and will be considered on collateral review only if
the defendant can show either (1) ‘cause' for his
failure to previously raise the issue and ‘actual
prejudice' resulting from the alleged error or
“actual innocence.'” Bousley v. United
States, 523 U.S. 614 (1998). “To establish
“cause, ” a prisoner must “show that some
objective factor external to the defense impeded
counsel's efforts to comply with the State's
procedural rule.” Murray v. Carrier, 477 U.S.
478, 488 (1986). “This requires a demonstration that
‘the factual or legal basis for the claim was not
reasonably available to the claimant at the time of the state
proceeding.'” Roach v. Angelone, 176 F.3d
210, 222 (4th Cir.1999) (quoting McCleskey v. Zant,
499 U.S. 467, 494 (1991)).
McDonnell v. United States
first series of arguments relies on the United States Supreme
Court case of McDonnell v. United States, 136 S.Ct.
2355 (2016) (“McDonnell”). He argues
that as a result of McDonnell, his convictions must
be vacated. In McDonnell, the Supreme Court held
that a district court's instruction on the term
“official act, ” as used in 18 U.S.C. §
201(a)(3), was overbroad. The Court interpreted official act
in the following way:
[A]n “official act” is a decision or action on a
“question, matter, cause, suit, proceeding or
controversy.” The “question, matter, cause, suit,
proceeding or controversy” must involve a formal
exercise of governmental power that is similar in nature to a
lawsuit before a court, a determination before an agency, or
a hearing before a committee. It must also be something
specific and focused that is “pending” or
“may by law be brought” before a public official.
To qualify as an “official act, ” the public
official must make a decision or take an action on that
“question, matter, cause, suit, proceeding or
controversy, ” or agree to do so. That decision or
action may include using his official position to exert
pressure on another official to perform an “official
act, ” or to advise another official, knowing or
intending that such advice will form the basis for an
“official act” by another official. Setting up a
meeting, talking to another official, or organizing an event
(or agreeing to do so) -without more - does not fit that
definition of “official act.”
McDonnell, 136 S.Ct. at 2371-72 (2016). Because the
jury instructions used at McDonnell's trial included a
broader interpretation, his convictions were vacated. Here,
it is necessary to determine which, if any, of the counts on
which Grace was convicted are affected by McDonnell.
At the outset, the Court notes that McDonnell
potentially affects Counts 1, 8, 9, 11 and 13. Each count
will be addressed in turn.
charged Grace with a violation of 18 U.S.C. § 1962(c) -
the RICO statute (“RICO”). To find a defendant
guilty under RICO, a jury must find, inter alia, proof beyond
a reasonable doubt of the commission of at least two
racketeering acts. See United States v. Turkette,
452 U.S. 576 (1981). Here, the Indictment lists eleven
racketeering acts. Six of the listed racketeering acts were
public bribery in violation of Title 14, Louisiana Revised
Statute, Section 118. Four of the listed acts were extortion
in violation of Title 18, United States Code, Section 1951.
These four acts of extortion were also charged as separate
crimes in Counts 2-5 of the Indictment. The remaining
racketeering act was obstruction of justice in violation of
Title 18, United States Code, Section 1512(b)(3). Obstruction
of justice was also charged as a separate crime in Count 6 of
the Indictment. Of these eleven racketeering acts, only the
four acts of extortion could have been affected by
mentioned above, the four racketeering acts of extortion were
charged as separate crimes in Counts 2-5 of the Indictment.
However, the jury returned verdicts of not guilty on each of
those counts. The Court takes this to mean that the acts
of extortion also did not form the basis of the jury's
conclusion that Grace violated RICO. As such, the Court
concludes that McDonnell has no effect on
Grace's conviction on Count 1.
charged Grace with a violation of Title 18, United States
Code, Section 666 - federal program bribery. This statute
makes it a crime for an agent of a state or local government
or agency receiving certain federal benefits to solicit,
accept, or agree to accept a bribe in connection with certain
business or transactions of the local government.
See 18 U.S.C §666(B). It is not clear to the
Court whether McDonnell has any effect on this
statute, as on its face, there is no official act
requirement. However, the Court need not decide whether it
applies. Even assuming, arguendo, that McDonnell
applies to Count 8, Grace's claim is procedurally
defaulted, as he failed to raise the claim on direct review.
See Bousley v. United States, 523 U.S. 614 (1998).
noted above, where a claim is procedurally defaulted,
“the claim may be raised in a habeas proceeding only if
the defendant can first demonstrate either ‘cause'
and actual ‘prejudice' or that he is
‘actually innocent.'” Id. at 622.
Here, Grace has failed to demonstrate cause or actual
innocence. First, Grace has failed to show that the legal
basis for his claim was not reasonably available to counsel
at the time of direct review. See Reed v. Ross, 468
U.S. 1 (1984) (holding that where a claim is so novel that
its legal basis is not reasonably available to counsel on
appeal, a petitioner has cause for the failure to raise the
claim on direct review). It is clear that the basis for the
Supreme Court's decision was reasonably available at the
time of Grace's appeal.
Valdes v. United States, the United States Court of
Appeals for the D.C. Circuit rejected a proposed
interpretation of the term official act as used in 18 U.S.C.
§ 201 as overly broad. 475 F.3d 1319, 1323 (D.C. Cir.
2007). In so doing, the court relied on the canon of
noscitur a sociis to narrowly interpret the terms
“question” and “matter, ” which are
found in the statutory definition of official act. See
id. at 1324. This was the same approach used by the U.S.
Supreme Court in McDonnell. See McDonnell,
136 S.Ct. at 2368. Additionally, in the case at bar, Grace
challenged his conviction on Count 13, arguing that the
Court's instruction on the term official action was
overbroad. Although he did not object on the basis that the
McDonnell Court later relied upon, Grace's
argument was close enough to demonstrate that such a basis
was reasonably available to counsel on direct review. For
these reasons, Grace has failed to show cause for his failure
to raise this issue on appeal as to Count 8.
has also failed to demonstrate actual innocence. To
demonstrate actual innocence, a defendant must show that
“it is more likely than not that no reasonable juror
would have convicted him.” Bousley v. United
States, 523 U.S. 614, 623, (1998). Here, the conduct
alleged in the Indictment related to accepting bribes in
exchange for zoning assistance and the sale of city property.
Specifically, the Indictment alleges that Grace promised to
ensure that particular property was zoned commercial and to
ensure that certain city property was sold to William Myles.
Such conduct clearly qualifies as official acts as defined in
McDonnell. After review of the record, the Court has
determined that enough evidence of such conduct was presented
to prevent the Court from concluding that it is more likely
than not that no reasonable juror would have convicted Grace
under this statute. Therefore, Grace has also failed to show
actual innocence. As such, Count 8 should not be vacated.
Counts 9 and 11
it appears from case law that McDonnell does, in
fact, apply to Counts 9 and 11, Grace did not raise the
issues addressed by McDonnell on direct review for
these counts. Therefore, Grace's McDonnell
claims on these counts are also procedurally defaulted.
Furthermore, because Grace has failed to prove cause or
actual innocence, Grace is not entitled to relief from his
convictions on these counts. First, Grace has failed to show
cause for the same reasons addressed in the section II(a)(ii)
on Count 8. Second, Grace has failed to prove actual
innocence, as there was sufficient evidence for a jury to
convict him on a theory of property fraud, which does not
implicate the term official act. Thus, it is not affected by
charged Grace with mail fraud under Title 18, United States
Code, Sections 1341 and 1346. Count 11 charged Grace with
wire fraud under Title 18, United States Code, Sections 1343
and 1346. Both wire and mail fraud contain an honest services
fraud theory and a property fraud theory. Charges may be
pursued on either, or both. In this case, charges were
pursued on both theories, as both theories were included in
the Court's jury instructions for Count 9 and Count 11.
mentioned above, only the honest services fraud theory of
mail and wire fraud implicates McDonnell, as the
official act instruction is only applicable to this theory.
Here, the jury had the option to convict under either theory
on each Count. Although it is impossible for the Court to