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Nowlin v. United States

United States District Court, N.D. Mississippi, Western Division

January 29, 2015

KEN NOWLIN, PETITIONER
v.
UNITED STATES OF AMERICA, RESPONDENTS

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[Copyrighted Material Omitted]

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For USA, Plaintiff: Robert H. Norman, U.S. ATTORNEY'S OFFICE, Oxford, MS.

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MEMORANDUM OPINION

MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE.

This matter comes before the court on the petition [127], [129] by Ken Nowlin for a writ of error coram nobis. The government has responded to the petition; the petitioner has replied, and the matter is ripe for resolution. For the reasons set forth below, the instant petition [127], [129] for a writ of error coram nobis will be denied.

Facts and Procedural Posture

Ken Nowlin and Gary Massey were indicted by the Grand Jury for the Northern District of Mississippi in a 41-count indictment on 31 May 2007. Pursuant to a plea agreement with the government, Nowlin testified before the Federal Grand Jury for the Northern District of Mississippi on 28 June 2007. A superseding indictment was returned that same day, charging both Massey and Nowlin in 53 counts. On 27 July 2007, Nowlin pled guilty to Count One of the superseding indictment and agreed to continue his cooperation with the government. Nowlin and his attorney Anthony L. Farese met several times with government prosecutors and agents and Nowlin was prepared to testify at trial against Gary Massey.

At the time of his indictment, Nowlin had been in the insurance business for almost three decades. Grand Jury Transcript, p. 4. He specialized in brokering health care plans to various companies and governmental entities. He had 60 or 70 local agents who brokered their clients' health care plans through him -- with the agent receiving an 8% commission from the insurance company in addition to a 4% " override" that the insurance company paid to Nowlin. Grand Jury Transcript, p.

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5-6. Gary Massey was one of those agents. In 1994 or 1995, Gary Massey sold Lafayette County, Mississippi its health care plan, receiving two-thirds (2/3) of the 12% commission on that plan. Massey received 8% of the face amount of the premium, and Nowlin received 4%. Grand Jury Transcript, p. 7. Massey was then elected to the Lafayette County Board of Supervisors in 1994; he took office in January 1995. The month before Massey took office, Nowlin and Massey discussed the fact that Massey could not sit on the Board and receive commissions as the agent for the county's health insurance coverage. Grand Jury Transcript, p. 8. Massey's portion of the commission on the Lafayette County plan was at that time about $11,000 per month, and the commissions Massey and Nowlin shared over the period of time from January 1996 until the county placed its coverage with another company in 2004 totaled about $827,000. Grand Jury Transcript, p. 19. Massey and Nowlin then agreed that Massey would continue to receive money equal to his commission, but they would call it a " consulting fee" since he could not receive the commission directly. Nowlin would become the sole agent of record on the Lafayette County plan, and Massey would receive his 8% commission from Nowlin, rather than from Trustmark, the insurance company. Grand Jury Transcript, p. 8. Nowlin made this clear when testifying before the Federal Grand Jury:

AUSA Tom Dawson: Now the reason that Massey wanted to no longer be the agent of record is that he knew that, as the supervisor, he could not share any commissions from the contract of the county in which he serves on the Board?
NOWLIN: That's right.
DAWSON: Of course, you knew that as well?
NOWLIN: Yes, sir.

Grand Jury Transcript, p. 9. Nowlin agreed to replace Massey's commission check from the insurance company with an equal check written on his own business account each month. When asked if he would have paid Massey the " consulting fee" had it not been for the Lafayette County plan, Nowlin responded under oath that he would not have done so. Grand Jury Transcript, p. 10. Indeed, Massey made clear that the money he received was simply a commission when he demanded a $3,000 per month increase in the " consulting fee" to match his share of an increase in the Lafayette County health insurance plan's premium. Grand Jury Transcript, pp. 12-16. Nowlin testified under oath before the federal grand jury that he increased Massey's " consulting fee" approximately $3,000 per month because Massey threatened to take away the Lafayette County business -- and other business -- if he did not. Grand Jury Transcript, p. 15. By the time Massey made his heated demand for more money to match the higher premiums, anyone would have understood: Massey was threatening to take the Lafayette County health care contract as well as others and move them to a different company.

Nowlin stood to lose his 4% override on the Lafayette County plan, as well as several other plans. Grand Jury Transcript, p. 16. Nowlin and Massey made approximately $827,000 in commissions between January 1996 and mid-2004, when the contract was not renewed by the Lafayette County Board of Supervisors. Grand Jury Transcript, p. 19. Massey had a clear conflict of interest -- to keep the plan for Lafayette County because it made a great deal of money for Gary Massey and Ken Nowlin. They concealed the scheme to make it work.

Nowlin initially contended, however, that he believed the payment arrangement to

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be legal because Massey claimed to have a legal opinion telling him so. To test this contention, Tony Farese, Nowlin's defense attorney, arranged for his client take an FBI polygraph to see if he honestly believed that Gary Massey had permission to receive his commission by simply calling it a consulting fee. The polygrapher found Nowlin to be deceptive when he answered " no" to the question: " Did you and Gary discuss how to hide the Total Plan Service commission?" At that point, Tony Farese clearly recognized that the race to the courthouse had begun, and if his client wanted to win that race -- and negotiate the best deal (including a downward departure under § 5K1.1) -- he needed to make a plea deal first. At Farese's urging, Nowlin signed a plea agreement, cooperated with the government, testified in the grand jury about the criminal conspiracy, and pled guilty a month before Massey. The government filed a § 5K1.1 motion for downward departure in recognition of Nowlin's cooperation.

Nowlin's case was going as smoothly as one could hope under the circumstances -- until he deviated from the advice of his attorney. Prior to sentencing, Nowlin had -- over and over -- admitted that he was guilty of the crime charged in Count One of the superseding indictment. He had unequivocally admitted guilt: to the government in several Fed. R. Crim. P. 11 meetings, in his plea agreement, during testimony before the Grand Jury, at his change of plea hearing, and on multiple occasions to his attorney. However, for some reason, shortly before sentencing, at a meeting with defense counsel, he changed his mind and began to assert his innocence, arguing once again that his co-defendant, Gary Massey, had misled him regarding the legality of the arrangement to pay Massey the commissions relabeled as " consulting fees." At the meeting, counsel -- in the strongest terms possible -- warned Nowlin of the many negative consequences of attempting to change his plea after admitting guilt so many times. Counsel memorialized the conversation in a lengthy, strongly-worded letter. (defense Exh. 22). Nowlin responded in an October 3, 2007, letter, stating that After much thought and careful consideration, I do not wish to change my guilty plea or my plea agreement . . . ."

As Larry Nowlin (Ken's brother) said in his affidavit (defense Exh. 11), " Ken tried to tell Judge Mills he was not guilty because there were mitigating circumstances. Ken told Judge Mills that he was misled by an elected official (Massey). When Ken said this, Farese pulled on Ken's coat to the extent that it indicat[e]d to me and everyone in the courtroom that Farese was trying to get Ken to shut up." These statements before the court undermined Nowlin's acceptance of responsibility. The court then sentenced him to the upper end of the guidelines range despite the government's § 5K1.1 motion. Nowlin ended Mr. Farese's representation and obtained other counsel to prosecute his appeal, attacking the 30-month sentence as unreasonable. The Fifth Circuit Court of Appeals affirmed the judgment. He then filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, which the court denied. The court also denied Nowlin's motion to reconsider its decision to deny § 2255 relief. Nowlin then filed the instant petition for a writ of error coram nobis.

Coram Nobis Relief[1]

The term coram nobis, a vehicle to mount a post-conviction collateral challenge

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to a judgment, is of Latin origin, and literally means " in our presence" or " before us." Black's Law Dictionary, 304-305 (5th ed. 1979). The " us" in the translation refers to the court which rendered the challenged judgment. Id. The purpose of the writ is to present to the court -- and obtain relief from:

errors of fact, such as a valid defense existing in the facts of [the] case, but which, without negligence on [the] defendant's part, was not made, either through duress or fraud or excusable mistake, where [the] facts did not appear on [the] face of [the] record, and were such as, if known in season, would have prevented rendition of the judgment.

Id. The All Writs Act, 28 U.S.C. § 1651, authorizes federal coram nobis relief, an extraordinary postconviction remedy for those convicted in a federal district court or a federal military tribunal. Federal Postconviction Remedies and Relief Handbook § 2:20 (Donald E. Wilkes, Jr.) Coram nobis applies only to federal convictions -- and may not be used to challenge convictions in state court. United States v. Poole, 531 F.3d 263 (4th Cir. 2008); Ogunwomoju v. United States, 512 F.3d 69 (2d Cir. 2008) (a federal district court has no jurisdiction to issue writs of error coram nobis to set aside a state court judgment). A defendant seeking coram nobis must do so by filing the petition in the convicting court as part of the original criminal proceeding.[2]

The federal coram nobis remedy " is of the same general character as one under 28 U.S.C. § 2255" with substantially the same grounds for relief -- the ground for relief must involve fundamental error, whether jurisdictional, constitutional, or otherwise. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). A coram nobis proceeding under 28 U.S.C.A. § 1651 is not a civil action; it is, instead, a post-sentencing phase of the original criminal prosecution giving rise to the challenged conviction. United States v. Denedo, 556 U.S. 904, 129 S.Ct. 2213, 2221, 173 L.Ed.2d 1235 (2009); United States v. Morgan, 346 U.S. 502, 506 n.4, 74 S.Ct. 247, 98 L.Ed. 248 (1954). The convicted defendant need not be in custody when seeking federal coram nobis relief. Barreto-Barreto v. United States, 551 F.3d 95 (1st Cir. 2008). In fact, as coram nobis relief is barred when another remedy is available, a defendant in custody through a federal conviction must proceed under 28 U.S.C.A. § 2255, rather than 28 U.S.C.A. § 1651. Jimenez v. Trominski, 91 F.3d 767 (5th Cir. 1996), United States v. Marcello, 876 F.2d 1147 (5th Cir. 1989). For this reason, defendants convicted in federal district court seeking relief under ยง 1651 are almost exclusively those who received a ...


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