Unpublished Disposition, 869 F.2d 1496 (9th Cir. 1989)

MEMORANDUM^** 

Appellant George Benny appeals pro se the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. We affirm.

Benny was convicted after a jury trial of twenty-one counts of mail fraud under 18 U.S.C. § 1341-42 and one count of racketeering under RICO provision 18 U.S.C. § 1962(c). A recital of the facts is found in this court's affirmance of the convictions on direct appeal, United States v. Benny, 786 F.2d 1410, 1413-14 (9th Cir.), cert. denied, 107 S. Ct. 668 (1986) (Benny) and is not repeated here.

* STANDARD AND SCOPE OF REVIEW

Denial of a defendant's Sec. 2255 petition is reviewed de novo. Walker v. United States, 816 F.2d 1313, 1316 (9th Cir. 1987). Section 2255 movants are barred from raising claims of error which they have failed to raise at trial or on direct appeal unless they can show "(1) 'cause' excusing [the] double procedural default, and (2) 'actual prejudice' resulting from the errors of which [they] complain [ ]." United States v. Frady, 456 U.S. 152, 168 (1982); United States v. Dunham, 767 F.2d 1395, 1397 (9th Cir. 1985). Claims of non-constitutional errors of law or fact may be raised in a Sec. 2255 proceeding only if the alleged error is a fundamental defect that renders the entire proceeding irregular and invalid or results in a complete miscarriage of justice. United States v. Addonizio, 442 U.S. 178, 185-86 (1979).

II

SUFFICIENCY OF THE INDICTMENT

Benny contends his superseding indictment for mail fraud is insufficient because it fails to allege that any of the loan lenders was defrauded of or lost money or property. He contends incorrectly that McNally v. United States, 107 S. Ct. 2875 (1987) (McNally) requires such an allegation in the indictment.

In Davis v. United States, 417 U.S. 333 (1974), the Supreme Court considered whether a federal prisoner could assert as a basis for Sec. 2255 relief a change in the law under which he was convicted. The court stated that "the appropriate inquiry was whether the claimed error of law was 'a fundamental defect which inherently results in a miscarriage of justice,' and whether ' [i]t ... present [s] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.' " Id. at 346 (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Davis concluded those conditions were met where petitioner was convicted for an act the law no longer made criminal.

Benny argues these conditions are present in this case by relying on a wholly incorrect reading of McNally. While McNally does change the law under the mail fraud statute, the case does not affect the criminality of Benny's actions.

McNally limited the scope of the mail fraud statute to the protection of property rights, McNally, 107 S. Ct. at 2881, and concluded that the statute does not reach "schemes to defraud citizens of their intangible rights to honest and impartial government." Id. at 2879-81. McNally 's conviction was reversed and remanded because the jury instructions allowed a guilty verdict on the loss of the right to honest government. Id. Contrary to Benny's contention, McNally does not require proof of actual loss. Moreover, the Supreme Court, in Carpenter v. United States, 108 S. Ct. 316 (1987), rejected the contention that a scheme to defraud under the mail fraud statute requires a monetary loss to the victim. Id. at 321.

Benny's reliance on dicta in Sigmond v. Brown, 828 F.2d 8 (9th Cir. 1987) is also inapposite. Sigmond affirmed the district court's grant of summary judgment in a civil RICO case and held that plaintiff's offer of "proof" of alleged predicate acts of mail fraud "was implausible and unsupported by the evidence presented." Id. at 9. Sigmond does not address the pleading requirements under the mail fraud statute and does not require a proof of loss.

A change in law rendered by McNally does not affect the validity of the indictment. An indictment must provide the defendant with a description of the charges against him in sufficient detail to enable him to prepare his defense and to plead double jeopardy at a later prosecution. United States v. Krasovich, 819 F.2d 253, 254 (9th Cir. 1987) (citation omitted). The indictment met these requirements. There is no fundamental defect in the indictment which inherently results in a miscarriage of justice.

Moreover, Benny's attack on the sufficiency of the indictment is not properly raised in his Sec. 2255 petition because he did not raise the claim below. "Generally, this court allows a collateral attack on the validity of an indictment only where an appellant can show cause why the claim was not raised before trial." United States v. Causey, 835 F.2d 1289, 1291 (9th Cir. 1987) (citation omitted). "Cause" may be demonstrated where appellant alleges the indictment's validity was not challenged before trial because of the ineffective assistance of counsel. Id. Benny makes only a passing speculation about the incompetence of his attorneys. Benny does not otherwise demonstrate cause why he did not raise his claim of indictment insufficiency before trial. Contrary to Benny's contention that he challenged the validity of the mail fraud indictment below, he did not. He challenged only the sufficiency of the RICO indictment. See Benny, 786 F.2d 1414-16.

III

JURY INSTRUCTIONS

Benny contends the district court erred by not instructing the jury that in order to sustain the mail fraud conviction it must find that the victim was defrauded of money or property. Benny challenged the intent to cause harm instruction at trial (CR 407), and argued on direct appeal that the instruction failed to require a loss to the victim. Benny, 786 F.2d at 1416-17. This court held that " [b]ecause Benny himself proposed the instructions which the court ultimately used, review is barred under the invited error doctrine." Id. at 1417.

"A defendant seeking Sec. 2255 relief on the basis of a faulty jury instruction can establish actual prejudice only by demonstrating that the erroneous instruction 'so infected the entire trial that the resulting conviction violates due process.' " United States v. Dunham, 767 F.2d 1395, 1397 (9th Cir. 1985) (quoting United States v. Frady, 456 U.S. 152, 168 (1982)).

For the reasons discussed above, the district court was not required to instruct the jury that it must find the victim was defrauded of money or property. Benny fails to demonstrate any prejudice in the jury instructions as given.

IV

GOVERNMENTAL ABUSE

Benny contends the government abused its authority by prosecuting him even though no one had complained about his conduct. Benny did not raise this issue on appeal. This court " 'will not interfere with the Attorney General's prosecutorial discretion unless it is abused to such an extent as to be arbitrary and capricious and violative of due process.' " United States v. Samango, 607 F.2d 877, 881 (9th Cir. 1979) (quoting United States v. Welch, 572 F.2d 1359, 1360 (9th Cir.), cert. denied, 439 U.S. 842 (1978)). Benny's claims of prosecutorial abuse are pure speculation and unsupported. He fails to demonstrate either cause or prejudice.

V

SUFFICIENCY OF THE EVIDENCE

Benny contends based on his McNally "proof of loss" argument that the evidence is insufficient to support his mail fraud convictions. While this issue was presented in Benny's petition, the district court did not address it. Benny did not raise this issue on direct appeal and fails to show why he did not. Because McNally does not require proof of loss, Benny fails to demonstrate prejudice. The evidence was more than sufficient to support the convictions. See Benny, 786 F.2d at 1413-14.

The judgment of the district court is AFFIRMED.