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Allen v. United States

United States Court of Appeals for the Sixth Circuit

October 21, 1988, Argued ; February 16, 1989, Decided ; February 16, 1989, Filed

No. 88-5250


 [*969]  ALAN E. NORRIS, Circuit Judge.

James M. Allen was convicted of mail fraud and conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 1341 and 371. Those convictions were affirmed by an en banc panel of this court in United States v. Blanton, 719 F.2d 815 (6th Cir. 1983), cert. denied, 465 U.S. 1099, 80 L. Ed. 2d 125, 104 S. Ct. 1592 (1984), prior to the Supreme Court's decision in McNally v. United States, 483 U.S. 350, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987). He was sentenced to two years' imprisonment and fined $ 8,000. Relying upon McNally, Allen sought from the district court a writ of error coram nobis [**2]  to set aside those convictions, and restitution of the fine he had paid. It is from the granting of that relief by the district court that the government appeals.

 [*970]  I

Along with the former Governor of Tennessee, Leonard Ray Blanton, and Clyde Edward Hood, a special assistant to Blanton, Allen was charged in a twelve-count indictment with eight counts of mail fraud (18 U.S.C. § 1341), and one count of conspiracy (18 U.S.C. § 371). The conduct undergirding the charges was the use by defendants of their positions to obtain preferential treatment for friends of Blanton concerning the operation of state licensed liquor stores. The scheme in which Allen was said to be involved would have violated state laws against public officials having an interest in a liquor store, against one person having an interest in more than one store within a municipality, and against public officials receiving bribes. He also was said to be involved in subverting the operation of the state's Alcoholic Beverage Commission so that liquor licenses could be issued to friends of the Blanton administration.

] The mail fraud statute seeks to punish [**3]  persons who, having devised a scheme to obtain money or property by fraud, use the mails to accomplish the scheme. 1 In McNally, the Supreme Court construed the statute as reaching only schemes designed to defraud of money or property. In that case, former Kentucky officials were involved in a scheme to divert, from the insurance agency actually earning them to agencies designated by the defendants, commissions paid by the state for workers' compensation policies. The indictment "alleged that [defendants] had devised a scheme (1) to defraud the citizens and government of Kentucky of their right to have the Commonwealth's affairs conducted honestly, and (2) to obtain, directly and indirectly, money and other things of value by means of false pretenses and concealment of material facts." McNally, 97 L. Ed. 2d at 298. The Court analyzed the legislative history of the mail fraud statute, as well as cases interpreting it, and concluded that ] Congress intended the statute to reach only schemes designed to defraud of money or property, and not "the intangible right of the citizenry to good government." Id. at 300-02. The defendants' mail fraud convictions were [**4]  reversed because "the jury was not required to find that the Commonwealth itself was defrauded of any money or property." Id. at 302.

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867 F.2d 969 *; 1989 U.S. App. LEXIS 1647 **

JAMES M. ALLEN, Petitioner-Appellee, v. UNITED STATES OF AMERICA, Respondent-Appellant

Prior History:  [**1]   On Appeal from the United State District Court for the Middle District of Tennessee.


indictment, mail fraud, convictions, liquor, defraud, licenses, intangible right, intangible, schemes, scheme to defraud, charges, cases

Criminal Law & Procedure, Fraud Against the Government, Mail Fraud, Elements, General Overview, Penalties, Accusatory Instruments, Indictments, Entry of Pleas, Types of Pleas