United States v. Richard E. Taylor

The subject causes have been consolidated on appeal. Because the cases involve a single defendant and arise from the same criminal proceeding, the facts of each cause are discussed together. The legal issues, however, are distinct and require separate resolution.

FACTS

Richard E. Taylor appeals from his conviction of wire fraud in violation of 18 U.S.C. § 1343 (1976) (No. 78-2512) and an order of the District Court denying his motion for a writ of error coram nobis (No. 79-1240).

Taylor and Dennis B. Wittman were jointly indicted for their part in the assertedly fraudulent acquisition of a substantial loan from the Continental Bank of Texas (“Continental”), in Houston, Texas. During the period of time covered by the indictment, late 1974 to early 1975, Taylor was a vice-president of the real estate department of Home Federal Savings and Loan Association (“Home Federal”), located in San Diego, California. The fraudulent “scheme or artifice” alleged by the Government was that Taylor and Wittman, who was a principal in several San Diego real estate development entities, had induced Continental to make a $1.97 million loan to a corporation run by Wittman, on the basis of their…

concurring in part and dissenting in part:

I concur in the affirmance of Taylor’s conviction (No. 78-2512), but respectfully dissent from the majority’s treatment of the coram nobis issue (No. 79-1240).

I believe the majority errs in reversing the district judge’s holding that the petition for a writ of coram nobis is untimely because of the pendency of the direct appeal of conviction. I agree that there is no jurisdictional impediment to hearing a cor-am nobis petition during the pendency of a direct appeal. Jack v. United States, 435 F.2d 317, 318 (9th Cir. 1970) (per curiam), cert. denied, 402 U.S. 933 , 91 S.Ct. 1530 , 28 L.Ed.2d 867 (1971); Womack v. United States, 395 F.2d 630, 631 (D.C. Cir. 1968) (per curiam). The majority, however, gives short shrift to the requirement that there be “extraordinary circumstances” before such a petition may be reviewed. The basis for this requirement is that “determination of the direct appeal may render collateral attack unnecessary.” Id. Thus, for example, if we had reversed Taylor’s conviction, his petition for a writ of coram nobis would have been unnecessary and would have been a waste of judicial resources. By affirming the district…

648 F.2d 565 7 Fed. R. Evid. Serv. 1850 UNITED STATES of America, Plaintiff-Appellee, v. Richard E. TAYLOR, Defendant-Appellant. Nos. 78-2512, 79-1240. United States Court of Appeals, Ninth Circuit. Argued May 1, 1979. Submitted Jan. 15, 1980. Decided March 20, 1981. Rehearing and Rehearing En Banc Denied June 17, 1981. Peter Shenas, Shenas, Robbins, Shenas & Shaw, San Diego, Cal., for defendant-appellant. Bruce J. Kelton, Sp. Atty., U. S. Dept. of Justice, Los Angeles, Cal., for plaintiff-appellee. Appeals from the United States District Court for the Southern District of California. Before ELY and WALLACE, Circuit Judges, and TAKASUGI, * District Judge. ELY, Circuit Judge: 1 The subject causes have been consolidated on appeal. Because the cases involve a single defendant and arise from the same criminal proceeding, the facts of each cause are discussed together. The legal issues, however, are distinct and require separate resolution. FACTS 2 Richard E. Taylor appeals from his conviction of wire fraud in violation of 18 U.S.C. § 1343 (1976) (No. 78-2512) and an order of the District Court denying his motion for a writ of error coram nobis (No. 79-1240). 3 Taylor and…