Bannister v. United States
Decision Date | 07 July 1971 |
Docket Number | No. 18073.,18073. |
Parties | Richard Gordon BANNISTER, Appellant, v. UNITED STATES of America. |
Court | U.S. Court of Appeals — Third Circuit |
Eugene B. Strassburger, III, Strassburger & McKenna, Pittsburgh, Pa., for appellant.
Blair A. Griffith, Asst. U. S. Atty., Pittsburgh, Pa. (Richard L. Thornburgh, U. S. Atty., John H. Bingler, Jr., Asst. U. S. Atty., Pittsburgh, Pa., on the brief), for appellee.
Before HASTIE, Chief Judge, and BIGGS, FREEDMAN,* SEITZ, VAN DUSEN, ALDISERT, ADAMS, GIBBONS and ROSENN, Circuit Judges.
There is no majority opinion in this case. Judges Van Dusen, Adams and Rosenn join in the opinion of Judge Biggs that Bannister's judgments of conviction must be reversed and the case dismissed. Judge Aldisert joins in Judge Hastie's opinion that Bannister's judgments of conviction should be affirmed. Chief Judge Seitz equates his view to Judge Gibbons' opinion that the indictment is invalid and that the judgments of conviction must be reversed.
The judgment of the court is that the judgments of conviction must be reversed and the case dismissed.
The defendant-appellant Bannister pleaded guilty to both counts of an indictment charging him with the unlawful concealment and transportation of marihuana, acquired or obtained without payment of the required transfer tax, in violation of Section 4744(a) (2), Title 26, U.S.C.1 Two concurrent three year sentences were imposed on him on June 20, 1967. Bannister did not appeal but over a year later petitioned to vacate the judgments of sentence pursuant to Section 2255, Title 28, U.S.C., on the ground that his convictions and sentences violated his Fifth Amendment privilege against compulsory self-incrimination. The trial court denied relief and this appeal followed. The crimes occurred in the Western District of Pennsylvania.
In Leary v. United States, 395 U.S. 6, 27, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Supreme Court by Mr. Justice Harlan held a "timely and proper" assertion of the privilege against compulsory self-incrimination to be a complete defense to prosecution under Section 4744(a) (2).
In Leary, Mr. Justice Harlan said:
The principal issues on this appeal are whether the assertion of the privilege against compulsory self-incrimination is a complete defense to Bannister's prosecution under § 4744(a) (2) as in Leary, and whether Leary may be applied retroactively. But several diverse and controversial views have been suggested as possibly applying to Bannister's case which, even if the Leary doctrine be applicable, would forefend a decision in his favor. We deem it desirable to dispose of these questions insofar as they can be determined before deciding the principal issues.
A. As to Plea Bargaining: It has been suggested that the colloquy set out below3 between the court, the assistant district attorney, and counsel for Bannister, during his sentencing, was a kind of plea bargaining. Counsel for the parties agree in stating there was no express plea bargaining. Could there have been, however, a form of implicit plea bargaining? Note 2 cited to the text in United States v. Liguori, 430 F.2d 842, at 844 (2 Cir. 1970), cert. denied, 402 U.S. 948, 91 S.Ct. 1614, 29 L.Ed.2d 118 (1971), states the following:
As we have stated, there were only two counts in Bannister's indictment and he pleaded guilty to both. Each involved a violation of Section 4744(a) (2) only. There was no count based on Section 176a as there was in Leary. There was no opportunity for plea bargaining in the form suggested by Liguori, or, insofar as we can see, in any other form. As we have said, Bannister was finally sentenced to imprisonment for three years on each count, the sentences to run concurrently. Cf. note 3, supra. We find that there was no plea bargaining, express or implied, and we therefore need not decide what might be the law of this case if the contrary had appeared.
B. As to the McMann Trilogy: The Government asserts that Bannister's guilty plea is a waiver of the defense of the privilege in light of the McMann trilogy: McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Brady v. United States, 397 U. S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). We think that these cases are easily distinguishable from the instant case and we adopt the reasoning of Judge Smith in United States v. Liguori, supra, 430 F.2d at 848-849 where the identical argument was made by the Government:
In addition to the reasons advanced by the Second Circuit, we think that McMann itself anticipated the situation in the case at bar. Writing for the Court in McMann Mr. Justice White stated: "What is at stake in this phase of the case is not the integrity of the state convictions obtained on guilty pleas,...
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