United States v. Joseph B. McClelland

Appellant Joseph B. McClelland appeals the district court’s denial of his petition to have his 1984 extortion conviction set aside. McClelland initiated this action by filing a motion pursuant to 28 U.S.C. § 2255 . Because McClelland is no longer in custody, the district court treated his motion as a petition for a writ of error coram nobis. McClelland contends the judge in his extortion trial gave an erroneous instruction to the jury and that this constitutes fundamental error necessitating a reversal of his conviction.

FACTS

McClelland was convicted of Attempted Interference with Commerce by Extortion, in violation of the Hobbs Act, 18 U.S.C. § 1951 (a), following an FBI sting operation. At trial, over defense objection, the court instructed the jury that the Government was not required to show that McClelland induced a government agent named Rybar to make an improper payment to him because of his official position. This ruling was affirmed on appeal. See United States v. McClelland, 731 F.2d 1438 (9th Cir.1984), cert. denied, 472 U.S. 1010 , 105 S.Ct. 2708 , 86 L.Ed.2d 723 (1985), overruled by United States v. Aguon, 851 F.2d 1158 (9th Cir.1988) (en banc).

In 1988, however,…