Opinion
2:95-cr-4-FtM-29DNF.
February 14, 2011
OPINION AND ORDER
This matter comes before the Court on defendant's Petition for Writ of Error Coram Nobis (Doc. #282) filed on January 31, 2011. The United States filed a Response (Doc. #283) on February 3, 2011, in which it does not oppose the requested relief.
In 1997, defendant was convicted by a jury of one count of mail fraud based upon an honest services theory of prosecution which the United States concedes did not involve bribery or kickbacks. The parties agree that several decisions by the United States Supreme Court in 2010 hold there is no federal criminal offense for mail fraud under an honest services theory unless the prosecution proves bribery or kickbacks. Skilling v. United States, 130 S. Ct. 2896 (2010); Black v. United States, 130 S. Ct. 2963 (2010); Weyhrauch v. United States, 130 S. Ct. 2971 (2010). The government concedes that these decisions apply retroactively to defendant (Doc. #283, p. 3). Because the conduct for which defendant was convicted is not proscribed by the statute she was convicted of violating, a writ of coram nobis is appropriate. United States v. Peter, 310 F.3d 709 (11th Cir. 2002). Therefore, defendant's conviction must be vacated.
Accordingly, it is now
ORDERED:
1. Defendant Vicki Lopez-Lukis's Petition for Writ of Error Coram Nobis (Doc. #282) is GRANTED.
2. The Judgment in a Criminal Case (Doc. #235) is VACATED. DONE AND ORDERED at Fort Myers, Florida, this 14th day of February, 2011.