956 F. 2d 272 - Lombardo v. United States

Before RIPPLE and MANION, Circuit Judges, and ROBERT A. GRANT, Senior District Judge1.

Petitioner Lombardo was convicted of wire fraud in 1984. United States v. Williams, 737 F.2d 594 (7th Cir.), cert. denied, Williams v. United States, 470 U.S. 1003 (1984). Subsequently, the Supreme Court decided McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), rejecting the idea that the deprivation of another's intangible rights constituted mail or wire fraud. Because the indictment and jury instructions in his case included the discounted intangible rights theory, Lombardo seeks to have his conviction vacated under 28 U.S.C. § 2255.

We have seen this case before. In Lombardo v. United States, 865 F.2d 155 (7th Cir.), cert. denied, 491 U.S. 905, 109 S.Ct. 3186, 105 L.Ed.2d 695 (1989), petitioner Lombardo claimed that, in light of the holding in McNally, his conviction was invalid because the jury may have relied on the intangible rights theory in finding him guilty. This court denied relief because the jury instructions did not allow conviction on the intangible rights theory alone, but also required the jury to find that the petitioner had engaged in a scheme to obtain money and property through fraudulent pretenses. In view of the conjunctive wording of the instructions, the discussion of intangible rights was found to have been nonprejudicial. Id. at 159.

Petitioner's claim in the instant case is indistinguishable, as he again asserts prejudice due to the inclusion of the intangible rights theory in the indictment and jury instructions. The sole difference is that he now cites United States v. Lytle, 677 F.Supp. 1370 (N.D.Ill.1988), for the proposition that any mention of the intangible rights theory requires reversal. We need not address the merits of the claim, however, as that would repeat the work done by the panel that considered Lombardo's first petition. When a second petition raises old arguments, the petitioner has the burden of showing that the "ends of justice" require the court to revisit the issues. Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148, 160-61 (1963).2

Generally, the "ends of justice" test is satisfied where the prior evidentiary hearing was not full and fair, there has been an intervening change in the law, or there was some justification for failing to raise a crucial point in a prior application.3 Petitioner argues that Lytle effected a change in the law. In Lytle the court, prior to trial, struck part of an indictment discussing the intangible rights theory. 677 F.Supp. at 1382-84. Lombardo interprets this as a holding that any indictment discussing the intangible rights theory contains harmful surplusage, and so he deserves a new trial.

This argument fails for two reasons. First, Lytle was decided before this court ruled on Lombardo's prior petition, and so could not make an "intervening" change in the law. Compare Sulie v. Duckworth, 864 F.2d 1348, 1351 (7th Cir.1988), cert. denied, 493 U.S. 828, 110 S.Ct. 93, 107 L.Ed.2d 58 (1989) and Jacks v. Duckworth, 857 F.2d 394, 399-400 (7th Cir.1988) (both relying on cases decided after a prior petition in looking for an intervening change in the law). Second, Lytle did not plainly change the law, as the court there simply struck part of an indictment; it did not address the issue of what would have happened if the indictment had remained as written. Additionally, we question whether a district court opinion could ever create an intervening change in the law. It would not bind this court, which is obligated to follow its own decision on the first petition, and the Ninth Circuit has implied that only the Supreme Court could produce the type of change in the law required by Sanders. Feldman v. Henman, 815 F.2d 1318, 1321 (9th Cir.1987) ("Absent Supreme Court authority contrary to our decision in a case, a district court cannot entertain, even in a matter properly before it, a petition by a party which in effect seeks to undo our court's resolution of a matter first addressed to and fully and fairly adjudicated by it.").

Therefore, the district court's denial of Lombardo's claim is affirmed.