Strauss v. U.S.
Decision Date | 27 May 1975 |
Docket Number | No. 74-1028,74-1028 |
Citation | 516 F.2d 980 |
Parties | Robert S. STRAUSS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
Court | U.S. Court of Appeals — Seventh Circuit |
Robert S. Strauss, Chicago, Ill., Hugo E. Martz, Valparaiso University (School of Law), Valparaiso, Ind., for petitioner-appellant.
Donald B. Mackay, U. S. Atty., J. Douglas Weingarten, Asst. U. S. Atty., Springfield, Ill., for respondent-appellee.
Before FAIRCHILD, Chief Judge, and CUMMINGS and SPRECHER, Circuit Judges.
In September 1968, petitioner Robert Strauss and Thaddeus M. Ohrynowicz were charged with a check-kiting scheme in violation of 18 U.S.C. §§ 1341 and 1342. 1 After a jury trial, petitioner was convicted on Counts II and IV under Section 1341 and on Counts V, VIII and X under Section 1342. The evidence against Strauss is summarized in our prior opinion affirming his conviction. United States v. Strauss, 452 F.2d 375 (7th Cir. 1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1252, 31 L.Ed.2d 455. This appeal results from the district court's denial without opinion of petitioner's motion under 28 U.S.C. § 2255. We reverse.
Petitioner contends that in light of United States v. Maze, 414 U.S. 395, 94 S.Ct 645, 38 L.Ed.2d 603, it is now clear that the conduct for which he was tried and convicted violates neither Sections 1341 nor 1342. Maze held that 18 U.S.C. § 1341, the so-called mail fraud statute, did not reach a scheme to defraud where an accused obtained goods and services from motel operators through a stolen credit card, knowing that the victims would subsequently mail the sales slips to a bank which would later mail it to the lawful owner of the credit card. The Court reasoned that Maze's "scheme reached fruition when he checked out of the motel(s), and * * * he probably would have preferred to have the invoice misplaced by the various motel personnel and never mailed at all." 414 U.S. at 402, 94 S.Ct. at 649. Therefore, the Court held that the mailings were not "sufficiently closely related to Maze's scheme to bring his conduct within the statute." 414 U.S. at 399, 94 S.Ct. at 648. Strauss also contends that he was denied the constitutional right to a speedy trial. He claims that if his position as to either of these arguments is accepted, he is entitled to relief under Section 2255.
Conceding that Maze is "retroactive," the Government agrees with petitioner that a Section 2255 action will lie to attack collaterally on Maze grounds a pre-Maze mail fraud conviction, citing Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109, and United States v. Travers, 514 F.2d 1171 (2d Cir. 1974). The Government further concedes that the use of the mails proved at trial was insufficiently related to Strauss' scheme to bring his conduct within Section 1341. Therefore, the Government acquiesces in petitioner's motion for relief as to Counts II and IV charging Section 1341 violations. 2 With respect to Counts V, VIII and X charging Section 1342 violations, however, the Government makes no similar concessions.
As noted supra, the Government concedes that the propositions of law set forth in Travers, supra, relating to both the "retroactive" effect of Maze and the availability of collateral relief to attack pre-Maze convictions are correct. While such government concessions are often useful to a court, they do not, at least as to questions of law that are likely to affect a number of cases in the circuit beyond the one in which the concessions are made, relieve this Court of the duty to make its own resolution of such issues. Thus we proceed to a determination of the legal issues largely independently of the Government's concessions.
In examining the effect of a Supreme Court decision that, in effect, declares the prior interpretation of a statute by a circuit in error, it is useful to note the characterization of the phrase "the law of the circuit" suggested by Judge Friendly in Travers, supra:
A similar view was expressed by this Court in Gates v. United States, 515 F.2d 73 at 78 (7th Cir. 1975), where in reference to a Supreme Court decision which settled a split among the circuits as to the meaning of a statute (this Court), Judge Hastings stated: the interpretation adopted by
Both Gates, supra, and Travers, supra, rely upon the opinion of this Court in Brough v. United States, 454 F.2d 370 (7th Cir. 1971). In Brough petitioner sought to attack his selective service conviction in a Section 2255 proceeding. Brough argued that a decision of the Supreme Court, which had been handed down after his appeal had been rejected, had shown the interpretation by this Court of the allegedly violated statute to be erroneous. In the opinion granting the relief sought, the Court stated:
Our evaluation of these cases leads us to accept Judge Friendly's position that Section 1341 has always had the meaning given it by the Supreme Court in Maze. Thus we hold with the Second Circuit that Maze must be applied "retroactively." Consequently, the rationale of affirmance in petitioner's direct appeal was in error.
In Davis v. United States, supra, the Supreme Court recognized that a petitioner under 28 U.S.C. § 2255 need not allege a constitutional violation to challenge his sentence successfully. 417 U.S. at 342-346, 94 S.Ct. 2298. Thus in accord with the language of Section 2255, a claim is cognizable thereunder if grounded in the "laws," as well as in the Constitution, of the United States. 3 The opinion in Davis is careful to note that not every asserted error of law is cognizable under Section 2255, 417 U.S. at 346, 94 S.Ct. 2298. Referring to Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, the Court stated in Davis:
Since we agree with the Government and petitioner that the mailings proved at trial were not sufficiently closely related to the purpose of the scheme to constitute a violation of Section 1341 under Maze, 4 petitioner's "conviction and...
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