01-2227 Mankarious v. U.S.

Listen to this article

“[E]ven if Teague did not bar application of Neder to their sec. 2255 motion, Mankarious and Murphy are still barred from raising their lack of a materiality instruction argument for the first time on collateral review. An issue not raised on direct appeal is barred from collateral review absent a showing of both good cause for and actual prejudice resulting from the failure to raise it. See Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996).

“Mankarious and Murphy argue that they can demonstrate cause because the law in this circuit prior to Neder rejected the requirement of a materiality instruction. But the fact that an argument was unacceptable at a particular time does not constitute cause for failing to raise it. See Bousley v. United States, 523 U.S. 614, 623 (1998). The possibility of a separate materiality instruction in fraud cases was not a new issue when this case went to trial. The defendants in Coffman, decided 2 years before Mankarious and Murphy’s direct appeal, argued (although unsuccessfully) that the lack of a materiality instruction required reversal of their wire fraud convictions. See Coffman, 94 F.3d at 335. Additionally, we noted in Coffman that the Ninth Circuit addressed the subject of a separate materiality instruction in mail fraud cases in 1981, 15 years before Mankarious and Murphy’s trial.”

Affirmed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Evans, J.