521 F.2d 421 (3rd Cir. 1975), 75-1023, United States v. Sams

Docket Nº:75-1023.
Citation:521 F.2d 421
Party Name:UNITED STATES of America v. William SAMS et al. Appeal of Victor CARLUCCI.
Case Date:August 04, 1975
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 421

521 F.2d 421 (3rd Cir. 1975)

UNITED STATES of America

v.

William SAMS et al.

Appeal of Victor CARLUCCI.

No. 75-1023.

United States Court of Appeals, Third Circuit

August 4, 1975

Argued April 28, 1975.

Page 422

Irving M. Green, New Kensington, Pa., for appellant.

Richard L. Thornburgh, U. S. Atty., Henry G. Barr, Asst. U. S. Atty., John C. Kenney, Acting Asst. Atty. Gen., Robert L. Kruch, Edward S. Christenbury, Larry L. Gregg, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before VAN DUSEN, ADAMS and GARTH, Circuit Judges.

Page 423

OPINION OF THE COURT

ADAMS, Circuit Judge.

The two principal issues to be resolved on this appeal are:

1. Whether a district court may, on a Coram nobis petition, annul a conviction under the federal wagering tax statutes when the conviction is based on a guilty plea entered prior to the time the Supreme Court held that the privilege against self incrimination furnished a complete defense against such charges; and

2. Whether the petition here presents a claim for the return of the fine imposed as a result of a conviction under the wagering tax statutes that is barred by the statute of limitations.

I.

On February 18, 1963, Victor Carlucci pleaded guilty to two counts of willful failure to pay the special federal occupational tax imposed on wagering. 1 As a result, he was sentenced to pay a fine of $10,000.

In Marchetti v. United States 2 and Grosso v. United States, 3 both decided January 26, 1968, the Supreme Court held that the framework of federal wagering tax statutes "may not be employed to punish criminally those persons who have defended a failure to comply with their requirements with a proper assertion of the privilege against self-incrimination." 4 Overruling their decisions in Kahriger 5 and Lewis, 6 the Court declared that the practice of gambling was so permeated with criminal prohibitions that prosecution for failure to comply with the requirements of the federal gambling tax statutes would encroach upon the Fifth Amendment's protection against compulsory self-incrimination.

Subsequently, in United States v. United States Coin and Currency 7 the Supreme Court ruled that the Marchetti and Grosso decisions should be given retroactive effect to invalidate a forfeiture proceeding. Donald Angelini had been convicted of not registering as a gambler and not paying the federal gambling tax. The government, prior to the Court's decisions in Marchetti and Grosso commenced forfeiture proceedings with respect to $8,674 which Angelini had in his possession at the time of his arrest. The Supreme Court held that the doctrine of Marchetti and Grosso should be applied to reverse the judgment of forfeiture.

This was the background when, almost eleven years after his conviction, Carlucci, in June, 1974, filed an application for a writ of error Coram nobis. Carlucci requested that the district court vacate, annul and set aside his conviction and refund the fine paid. He predicated his application on the Fifth Amendment, the All Writs Act 8 and section 1346(a)(2) of

Page 424

the Tucker Act. 9 The district court denied all the relief sought. It reasoned that by entering a guilty plea Carlucci had waived any defense under the Fifth Amendment, and that because there was no congressional waiver of sovereign immunity, the court had no authority to order a return of the fine.

II.

On this appeal Carlucci contends that under Marchetti and Grosso the Fifth Amendment provides an absolute bar to his conviction, and that the principle of those cases should be applied retroactively. Carlucci further maintains that since at the time of his conviction he could not have known that the prosecution ran afoul of the Constitution, his plea of guilty was not knowing and voluntary, and therefore his conviction should be vacated.

In addition, the Tucker Act, according to Carlucci, affords the district court the power to order his fine refunded, and a Coram nobis proceeding is a proper occasion upon which to present his demand for the return of the money unconstitutionally taken from him. Finally, Carlucci argues that since he could not have known prior to the decision of the Supreme Court in Coin and Currency that he possessed a cause of action for the refund of the fine, the statute of limitations did not commence running until the date of that decision.

The government, in response submits that Carlucci's guilty plea is not subject to collateral attack because it was voluntarily entered and because Carlucci received assistance of counsel which was adequate with respect to the then-existing law. Even if the conviction is invalid, the United States asserts, the district court has no jurisdiction to order the fine remitted. The six year statute of limitations, according to the government, began running at least at the time of Marchetti and Grosso, and thus the period for filing a proceeding under the Tucker Act elapsed before Carlucci instituted this action. Additionally, the government alleges that there is no statutory authorization for repayment of the fine, and that in any case Carlucci has not qualified for recovery because he has not submitted a claim to the Secretary of the Treasury in conformity with the requirements of 26 U.S.C. § 7422.

For reasons which will be set forth below, we reverse that portion of the district court's judgment that declined to expunge the conviction, and affirm that portion of the judgment that denied Carlucci's Tucker Act claim.

III.

  1. The effect of Carlucci's Guilty Plea on the Availability of Collateral Relief.

    In three companion cases of Brady, McMann and Parker the Supreme Court established the general rule that where a conviction is based upon a plea of guilty, the conviction is subject to federal collateral attack only on limited grounds. 10 To invalidate his conviction the defendant must show that he did not make the plea knowingly, intelligently and voluntarily or upon a demonstration that the plea was not uttered with the assistance of counsel competent with respect to the law as it existed at the time of the conviction. In particular, the Court stated that "a voluntary plea of guilty intelligently made in light of the then applicable law does not become vulnerable

    Page 425

    because later judicial decisions indicate that the plea rested on a faulty premise." 11

    However, in Bannister v. United States 12 this Court, En banc, decided that the general rule of the finality of guilty pleas did not preclude the assertion in a federal habeas petition of a Fifth Amendment defense by a person who had, prior to the ruling in Leary, 13 submitted a guilty plea to charges under the marihuana tax statutes, Bannister pleaded guilty to both counts of a two count indictment alleging criminal failure to pay the marihuana taxes, and in June, 1967, was sentenced to two concurrent prison terms. Thereafter, the Supreme Court, relying on the rationale of Marchetti and Grosso, held in Leary that the privilege against compulsory self-incrimination provided a defense against an accusation of concealing marihuana with payment of the federal transfer tax. 14 It was the judgment of a majority of this Court, albeit on the basis of somewhat divergent reasoning, that in light of Leary Bannister was entitled to have the writ issue in spite of his guilty plea.

    We have interpreted the Bannister decision as meaning that in a situation such as that now before us, where a petitioner seeks to upset an earlier guilty plea on the basis of a decision articulating previously unrecognized constitutional rights,

    whether we apply the general rule of the guilty plea trilogy depends on the quality of the right sought to be asserted in the collateral attack. Does the newly-expressed right affect . . . "the integrity of the conviction" . . . or does it constitute what (has been) described as an "essentially procedural" change in the law . . . ? 15

    In the present case, the constitutional objection raised by Carlucci, like that in Bannister undermines "the integrity of the conviction." Indeed, the right asserted is the same as that urged in Bannister freedom from criminal punishment for not incriminating one's self by paying a special tax on an activity closely circumscribed by criminal penalties. The Supreme Court, in Coin and Currency gave the following description of the self-incrimination privilege as formulated in Marchetti:

    "Unlike some of our earlier retroactivity decisions, we are not here concerned with the implementation of a procedural rule which does not undermine the basic accuracy of the fact finding process . . . . Rather, Marchetti and Grosso dealt with the kind of conduct that cannot constitutionally be punished in the first instance." 16

    We do not find persuasive the government's argument that our decision in Bannister has been subverted by the opinion of the Supreme Court in Tollett v. Henderson. 17 There the Supreme Court declared that the defendant's guilty plea to an indictment for murder foreclosed him from litigating on habeas the issue of racial discrimination in the selection of the grand jury that had indicted him. Eschewing an analysis solely in terms of a knowing waiver of a constitutional right, 18 the Court stated that in such cases the focus of the habeas inquiry should be on "the nature of the advice and the involuntariness of the plea, not the existence as such of an antecedent constitutional infirmity." 19

    The situation before us, however, is distinguishable from that in Tollett. In Tollett, as in McMann, Brady and

    Page 426

    Parker, the nature of the recently acknowledged constitutional right which formed the basis for the challenge to the conviction was essentially procedural. Here, in contrast, the assertion is that the very conduct charged against Carlucci is constitutionally privileged. 20

    In this case as in Bannister, and unlike Tollett and the cases of the trilogy, there is no...

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24 practice notes
  • 557 F.Supp. 144 (M.D.Pa. 1982), Civ. 82-0344, June v. Secretary of Navy
    • United States
    • Federal Cases United States District Courts 3th Circuit Middle District of Pennsylvania
    • December 23, 1982
    ...accrues "upon the occurrence of the final event necessary to complete the elements of the claim." United States v. Sams, 521 F.2d 421, 429 (3d Cir.1975). A claim challenging an unconstitutional separation from the military accrues at the time of the discharge. See, e.g., Mosley v.......
  • 852 F.2d 199 (7th Cir. 1988), 87-3030, United States v. Keane
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • July 5, 1988
    ...from a routine civil matter makes it unnecessary to explore limits on the restitution of criminal fines, just as United States v. Sams, 521 F.2d 421 (3d Cir.1975), avoided the same complex issue by declining on other grounds to issue the writ. If Keane could clear all of these hurdles, he w......
  • 249 N.W.2d 688 (Iowa 1977), 58918, State v. Jaeger
    • United States
    • Iowa Supreme Court of Iowa
    • January 19, 1977
    ...courts have cited and adopted the Blackledge holding. See Green v. Estelle, 5 Cir., 524 F.2d 1243, 1244; United States v. Sams, 3 Cir., 521 F.2d 421, 427; United States v. Bluso, 4 Cir., 519 F.2d 473, 474; Inge v. Slayton, E.D.Va., 395 F.Supp. 560, 565, 566; State v. Cody, Mo., 525 S.W.2d 3......
  • 24 F.3d 42 (9th Cir. 1994), 93-50034, Telink, Inc. v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • May 13, 1994
    ...Circuit has applied section 2401's limitations period to the coram nobis petition, and urge us to do the same. See United States v. Sams, 521 F.2d 421, 428-29 (3d Cir.1975). We do not find Sams persuasive. Sams held that a petitioner who reverses his conviction cannot obtain a refund of wro......
  • Free signup to view additional results
24 cases
  • 557 F.Supp. 144 (M.D.Pa. 1982), Civ. 82-0344, June v. Secretary of Navy
    • United States
    • Federal Cases United States District Courts 3th Circuit Middle District of Pennsylvania
    • December 23, 1982
    ...accrues "upon the occurrence of the final event necessary to complete the elements of the claim." United States v. Sams, 521 F.2d 421, 429 (3d Cir.1975). A claim challenging an unconstitutional separation from the military accrues at the time of the discharge. See, e.g., Mosley v.......
  • 852 F.2d 199 (7th Cir. 1988), 87-3030, United States v. Keane
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • July 5, 1988
    ...from a routine civil matter makes it unnecessary to explore limits on the restitution of criminal fines, just as United States v. Sams, 521 F.2d 421 (3d Cir.1975), avoided the same complex issue by declining on other grounds to issue the writ. If Keane could clear all of these hurdles, he w......
  • 249 N.W.2d 688 (Iowa 1977), 58918, State v. Jaeger
    • United States
    • Iowa Supreme Court of Iowa
    • January 19, 1977
    ...courts have cited and adopted the Blackledge holding. See Green v. Estelle, 5 Cir., 524 F.2d 1243, 1244; United States v. Sams, 3 Cir., 521 F.2d 421, 427; United States v. Bluso, 4 Cir., 519 F.2d 473, 474; Inge v. Slayton, E.D.Va., 395 F.Supp. 560, 565, 566; State v. Cody, Mo., 525 S.W.2d 3......
  • 24 F.3d 42 (9th Cir. 1994), 93-50034, Telink, Inc. v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • May 13, 1994
    ...Circuit has applied section 2401's limitations period to the coram nobis petition, and urge us to do the same. See United States v. Sams, 521 F.2d 421, 428-29 (3d Cir.1975). We do not find Sams persuasive. Sams held that a petitioner who reverses his conviction cannot obtain a refund of wro......
  • Free signup to view additional results