Vaccaro v. United States

• Decision Date: 12 April 1972
• Docket Number: No. 28852.,28852.
• Citation: 461 F.2d 626
• Parties: John J. VACCARO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

461 F.2d 626 (1972)

John J. VACCARO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 28852.

United States Court of Appeals, Fifth Circuit.

April 12, 1972.

George Leppert, F. Irvin Dymond, New Orleans, La., Percy Foreman, Houston, Tex., Alto V. Watson, Beaumont, Tex., for petitioner-appellant.

Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., Charles J. Carroll, Mervyn Hamburg, Attys., U. S. Dept. of Justice, Washington, D. C., Will Wilson, Asst. Atty. Gen., for respondent-appellee.

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

BY THE COURT:

This case having been heard by the Court en banc pursuant to the order heretofore entered on August 17, 1971, it is ordered that the en banc Court convened to consider this case is hereby dissolved and the case is hereby restored to the docket and reassigned to the original panel of Judges Brown, Gewin and Thornberry.

Before JOHN R. BROWN, Chief Judge, and GEWIN and THORNBERRY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Until May 19, 1969, a jury in a Federal marijuana prosecution involving alleged violations of 21 U.S.C.A. § 176a¹ was likely to be instructed that proof of possession of marijuana was sufficient presumptively to establish the essential element of knowledge that the marijuana possessed was illegally imported into this country. In Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed. 2d 57, however, the Supreme Court struck down the 176a statutory presumption² as unconstitutionally "arbitrary" and "irrational" for want of an ascertainable relation between the fact proved (possession) and the fact presumed (knowledge of illegal importation).

Since Leary, the path to Federal court has been well trod, as petitioner after petitioner seeks to wrap himself in Leary's protective cloak. John J. Vaccaro, convicted in 1961³ of violating the discredited and since-superseded⁴ statutory mandates of 176a, is one of these, and his case brings us face to face with the difficult, but inevitable, issue of the retroactivity of Leary's § 176a holding. Concluding that Leary must be accorded retroactive application, we reverse the District Court's denial of § 2255 post-conviction relief.

Retroactivity Theory—Another Enigma Wrapped In A Mystery

Perhaps no other area of Constitutional law is more enshrouded in puzzlement and apparent logical inconsistencies. The most recent example of the disparity is the fragmented Supreme Court decision in Adams v. Illinois, 1972, 404 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202, where only three Justices could join in the Court's opinion denying retroactive application to Coleman v. Alabama, 1970, 399 U.S. 1, 90 S.Ct. 1999, 26 L. Ed.2d 387. A catalogue of some of the other retroactivity holdings demonstrates the perplexities. For example, while the right to counsel at a preliminary hearing where the defendant makes incriminating statements is retroactively recognized,⁵ the right to counsel during accusatorial police interrogation during which the accused makes incriminating statements is not retroactively enforced.⁶ Similarly, while the defendant's right to a fair, impartial and unbiased jury is retroactively effected,⁷ the right to an impartial judge may be given prospective application only.⁸ Likewise, the defendant is entitled to retroactive protection against the extrajudicial confessions of a co-defendant,⁹ but not of himself.¹⁰

Systematic exclusion of Blacks from juries calls for retroactive vindication,¹¹ but systematic exclusion of women apparently does not.¹² Newly announced standards for determining the voluntariness of confessions are retroactive,¹³ but newly announced standards for determining the voluntariness of guilty pleas are not.¹⁴

At the outset we recognize the impossibility of reconciling these apparent inconsistencies with any neatly constructed, logically appealing, symmetrically patterned theory or doctrine. The reason is that retroactivity is essentially a pragmatic, case-by-case, result-oriented process whereby the often competing interests of society, the accused (or by now, the convicted) and the efficient administration of justice are balanced and weighed. There are no hard and fast rules, no shorthand formulae, in the retroactivity area—only factors, equities and considerations. Thus, what is dispositive of one case may be of little value in resolving any other retroactivity problem. The scales are sensitive with so much at stake, and the delicate balance shifts with each different set of facts and circumstances.

For example, in deciding its 176a Leary retroactivity case,¹⁵ the Ninth Circuit adopted a theory advanced by many commentators¹⁶ and cited by the Supreme Court¹⁷ that "where the rule is fashioned to correct a serious flaw in the fact-finding process and therefore goes to the basic integrity and accuracy of the guilt-innocence determination, retroactive effect will be accorded." 425 F.2d at 58.

On the other hand, in other contexts retroactivity has been refused, despite the fact that purification of the fact-finding process is the sole purpose of the new constitutional principle. In Stovall v. Denno,¹⁸ for example, the Supreme Court denied retroactive application of Wade¹⁹ and Gilbert,²⁰ both designed solely to reduce the likelihood of misidentification of a defendant at a lineup. Recognizing that "the possibility of unfairness at that point is great," 388 U.S. at 298, 87 S.Ct. at 1970, 18 L.Ed.2d at 1204, and that Wade and Gilbert were both aimed at "avoiding unfairness at the trial by enhancing the reliability of the fact-finding process in the area of identification evidence,"²¹ the Supreme Court chose, nevertheless, to weigh such considerations against the "prior justified reliance upon the old standard and the impact of retroactivity upon the administration of justice." (Emphasis added). Ibid. Retroactive application of Wade and Gilbert was denied.

Similarly, the rule of Bloom v. Illinois, supra, extending the right to jury trial to serious criminal contempt proceedings, was predicated upon a desire to cleanse the fact-finding process. The Supreme Court recognized the obvious, that a guilt-determination by the "very judge who was the object of the allegedly contemptuous behavior"²² is inherently suspect and vulnerable to being unfairly tried. Despite this premise that the old unconstitutional procedure produced a substantial likelihood of an infected result (since the fact-finder may well be biased or prejudiced, and is certainly not disinterested), Bloom has been held to apply prospectively only.²³

The most important factor in the one line of cases—the fact that the new constitutional rule involved "an adjunct to the ascertainment of truth"²⁴—was of relatively minor (at least, not controlling) significance in other circumstances.

Undeniably, such a flexible, imprecise, case-by-case approach has necessarily engendered some frustration and no small amount of confusion. Thus, the Second Circuit in its consideration of the retroactivity of Leary's 176a holding,²⁵ after making a preliminary survey of the cases and voluminous law review articles²⁶ on the subject of retroactivity, frankly proclaimed perhaps in despair or dismay that the subject matter was too confusing, that the doctrine is "still in a developing stage," and that it might be time to "take a new look" at the entire area. 438 F.2d at 669. Whereupon, the Court neatly side-stepped the retroactivity issue—or more accurately, deftly postponed it²⁷—and disposed of the case before it "by applying the simple and universal rule that a judgment in a criminal case in which the prosecution has offered and the record discloses no proof whatever of various elements of the crime charged has a fatal constitutional taint for lack of due process of law." Id. Since the Government had introduced "no evidence at all" to prove the essential element of knowledge of illegal importation, the conviction was overturned.

The difficulties and frustrations are well summed up in the dissent in Scott, supra:

"It is probably impossible to completely rationalize the decisions of the Supreme Court on the subject of retroactivity. A close reading of those decisions reveals an essentially ad hoc consideration of each newly articulated constitutional right. What standards have been set have proved transitory. Where the Court has treated itself bound by a standard, it has shown a willingness to bend, if not break, that standard in the interests of a desirable result."

425 F.2d at 68.

Indeed, as Adams, supra, so recently reminds us, Mr. Justice Harlan described developments in the retroactivity area as "haphazard," and suggested that the decisions have, for many, really produced more confusion than enlightenment. In his separate opinion in Mackey,²⁸ Mr. Justice Harlan lamented that, "The upshot of this confluence of viewpoints was that the subsequent course of Linkletter²⁹ became almost as difficult to follow as the tracks of a beast of prey in search of his intended victim." 401 U.S. at 676, 91 S.Ct. at 1172, 28 L.Ed.2d at 411.³⁰

The point is that in retroactivity cases there is no one common denominator, no single answer, no lone master key opening all the doors. Each situation must be decided on its own set of facts and it is unsound to assume that simply because retroactivity has been afforded in one particular circumstance, it will be applied in any other. It is all a matter of individual balancing.

Balancing the factors in the 176a presumption case leads us to the conclusion—actually conceded in the Government's en banc brief and argument—that Leary should be retroactive in marijuana cases. Several types of cases support this evaluation.

The first of these involves a recent series of cases in which the Supreme Court has invalidated registration and...