United States v. Varah, 10th Cir. (1998)
United States v. Varah, 10th Cir. (1998)
United States v. Varah, 10th Cir. (1998)
JUL 29 1998
PATRICK FISHER
Clerk
v.
A. LEONARD VARAH,
Defendant-Appellant.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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under 28 U.S.C. 2255. See, e.g., United States v. Rourke, 984 F.2d 1063, 1067
(10th Cir. 1992) (liberally construing a pro se motion as one brought pursuant to
2255). Section 2255 appeals are governed by the time requirements for civil, not
criminal, appeals. See Klink v. United States, 308 F.2d 775, 776 (10th Cir. 1962).
The time to file an appeal in a civil case in which the United States is a party is
within sixty days after entry of the order or judgment appealed from. See Fed. R.
App. P. 4(a)(1). For this reason, Mr. Varahs notice of appeal was timely, and we
have jurisdiction.
Section 2255 motions are not available to test the legality of matters which
should have been raised on direct appeal. United States v. Warner, 23 F.3d 287,
291 (10th Cir.1994). Mr. Varah filed at least one pre-trial motion to dismiss his
indictment raising the same 18 U.S.C. 3282 statute of limitations claim that Mr.
Varah raises in his October 8, 1983 motion; that is, that his involvement in the
alleged conspiracy and fraud ended more than five-years prior to the filing of the
indictment. 2 See R., Doc. 36, 50. The pre-trial motion to dismiss the indictment
was denied by the district court. Mr. Varah did not raise the 3282 statute of
limitations issue on direct appeal, nor did he raise any objections with respect to
The district court stated that Mr. Varah filed a second pre-trial motion to
dismiss the indictment on April 30, 1987, raising the same 3282 statute of
limitations argument. However, the record on appeal does not include this
motion.
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the date or sufficiency of the indictment. See Varah, 1992 WL 186530, at **1-4.
A defendants failure to present an issue on direct appeal bars him from raising
the issue in his 2255 motion, unless he can show cause excusing his procedural
default and actual prejudice resulting from the errors of which he complains, or
can show that a fundamental miscarriage of justice will occur if his claim is not
addressed. Warner, 23 F.3d at 291. We need not address whether this bars Mr.
Varah from asserting his claim, however, because, even assuming it is not
procedurally barred, the claim fails on its merits.
When the attack upon the indictment is made collaterally, the judgment
must stand if the indictment is sufficient to meet constitutional requirements.
Chavez v. Baker, 399 F.2d 943, 944 (10th Cir. 1968) (quoting Flores v. United
States, 338 F.2d 966, 967 (10th Cir. 1964). The district court docket sheet shows
that the indictment was filed on September 18, 1986, and the indictment bears the
clerks file stamp of that date. See R. Doc. 1. Mr. Varahs pre-trial motion to
dismiss the indictment states that the indictment was filed on September 23, 1986,
and bases its 3282 statute of limitations argument on that date. As the
indictment adequately informed Mr. Varah of the offenses charged and alleged the
essential elements of the offenses, the indictment was constitutionally sufficient.
See id. Further, even if the indictment were subject to attack, this court
necessarily and implicitly resolved Mr. Varahs statute of limitations issue against
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him when it affirmed his conviction, finding evidence that Mr. Varah sent mailings
in furtherance of the charged schemes on July 16, 1982, and January 19, 1983,
within 3282's five-year limitation period, applying the September 18, 1986 filing
date of the indictment. See Varah, 1992 WL 186530, at **2, 4.
The judgment of the United States District Court for the District of
Wyoming is AFFIRMED. The mandate shall issue forthwith.
Robert H. Henry
Circuit Judge
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