U.S. v. Nolan, 77-1545

• Citation: 571 F.2d 528
• Decision Date: 28 February 1978
• Docket Number: No. 77-1545,77-1545
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eugene A. NOLAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 528

571 F.2d 528

UNITED STATES of America, Plaintiff-Appellee, v. Eugene A. NOLAN, Defendant-Appellant.

No. 77-1545.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Sept. 29, 1977.

Decided Feb. 28, 1978.

Robert L. Weinberg, of Williams & Connolly, Washington, D. C. (Andrew L. Lipps, Washington, D. C., with him on brief), for defendant-appellant.

Kenneth P. Snoke, Asst. U. S. Atty., Tulsa, Okl. (Hubert A. Marlow, Acting U. S. Atty., Tulsa, Okl., with him on brief), for plaintiff-appellee.

Before LEWIS, Chief Judge, SETH, Circuit Judge, and BRIMMER, Chief Judge. ^*

BRIMMER, Chief Judge.

The Petitioner-Appellant, Eugene A. Nolan, seeks review of the district court's order denying his motion to vacate sentence pursuant to 28 U.S.C. Section 2255. He was initially indicted in 1966 by a federal grand jury for the Northern District of Oklahoma. The two-count indictment charged Nolan with conspiracy to use interstate facilities for gambling purposes in violation of 18 U.S.C. Section 371 and the actual use of interstate facilities to carry on unlawful gambling business in violation of 18 U.S.C. Section 1952. He was tried and convicted in May of 1967 on both counts of the indictment, and sentenced to four years of imprisonment on each of the two counts, the sentences to run consecutively.

Prior to his trial and conviction, the Petitioner had submitted wagering tax forms and payments to the Internal Revenue Service in compliance with 26 U.S.C. Sections 4401, 4411 and 4412. These provisions were enacted for the purpose of taxing wagers. In conjunction with this statutory scheme the Appellant was issued a Federal Wagering Tax Stamp. At Petitioner's trial various references to the tax stamp were made. The primary reference to the stamp came from the Appellant's brother, Dr. Charles Nolan. He testified on both direct and cross-examination that one of his reasons for considering his brother a professional gambler was the Appellant's possession of a wagering tax stamp. Additionally, both counsel, on closing argument, referred to the testimony of Dr. Nolan. The court also devoted one sentence of its instructions to the tax stamp. Finally, the indictment, which listed the Appellant's holding of a wagering stamp as one of the overt acts under the conspiracy count, was read to the jury. All references to the tax stamp were made without the objection of Appellant's counsel.

The Petitioner appealed his conviction to this court, contending inter alia that the trial references to his possession of a Federal Wagering Tax Stamp violated his Fifth Amendment privilege against self-incrimination. The assertion was made in light of Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), holding that the federal statutory requirements to register and file gambling tax returns constituted compulsory self-incrimination, and that the assertion of the Fifth Amendment privilege would act as a complete defense to prosecutions for the failure to comply with 26 U.S.C. Sections 4401, 4411 and 4412 which were decided by the Supreme Court while Nolan's convictions were pending on appeal.

In Nolan v. United States, 423 F.2d 1031 (10th Cir. 1970), this court held that the references to the Appellant's tax stamp were sufficient to entitle him to claim the Fifth Amendment privilege, but, that the Petitioner had waived his claim to this privilege. We found that the Appellant's case was tried in the shadow of Marchetti and Grosso, and that both counsel were well aware of the availability of the privilege that was then being actively litigated. We observed that Appellant's counsel objected to the introduction into evidence of the tax stamp and tax filings of Nolan's alleged co-conspirator, based on the pending Marchetti and Grosso cases. It was, therefore, the opinion of this court that the failure to assert the privilege sometime during the trial "can be plausibly attributed to calculated trial strategy." Nolan v. United States, supra, at 1039.

Appellant has now brought this action pursuant to 28 U.S.C. Section 2255 requesting an order vacating his sentence because the Government's references to Nolan's possession of a Federal Wagering Tax Stamp at trial violated his Fifth Amendment privilege against self-incrimination. The District Court denied the Petitioner Section 2255 relief without holding an evidentiary hearing, holding that there had been no change in this circuit's view of the law of waiver and that the Appellant's motion was improper. The District Court concluded that should this court take a fresh look at the Petitioner's conviction, we would find that Marchetti and Grosso should not be retroactively applied to the case at bar.

On appeal Nolan contends that (1) this circuit has changed the law of waiver and that the Appellant is entitled to the benefit of that change; (2) Marchetti and Grosso are fully retroactive in application; and (3) an evidentiary hearing was required on the issue of waiver.

An issue disposed of on direct appeal will generally not be reconsidered on a collateral attack by a motion pursuant to 28 U.S.C. Section 2255. Baca v. United States, 383 F.2d 154 (10th Cir. 1967), cert. denied, 390 U.S. 929, 88 S.Ct. 868, 19 L.Ed.2d 994. However, a motion under Section 2255 may be proper when there has been an intervening change in the law of a circuit. Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), a selective service case, involved a defendant who was ordered to report for induction into the armed services and when he did not report, was prosecuted and convicted for failing to be inducted. The Ninth Circuit remanded the case for reconsideration in light of the Supreme Court decision in Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970). The District Court upheld Davis' conviction and the Ninth Circuit affirmed. While the case was pending before the Supreme Court the Ninth Circuit decided United States v. Fox, 454 F.2d 593 which, based on Gutknecht, reversed a conviction on facts "virtually identical" to those on which Davis was convicted. After the Supreme Court denied certiorari in his case the defendant filed a Section 2255 motion which was denied by the District Court and affirmed on appeal. The Supreme Court reversed, holding that a Section 2255 proceeding was proper if "new law" has been made. Davis v. United States, supra, 417 U.S. at 342, 94 S.Ct. 2298.

The Appellant asserts that the case of Martinez v. United States,464 F.2d 1289 (10th Cir. 1972), represents such a change in the law of waiver and that the "new law" should inure to his benefit. We do not agree, because the case at bar and Martinez are not virtually identical. The issue involved in Martinez was the validity of the defendant's convictions for violation of 26 U.S.C. Section 4744(a), a subsection of the Marihuana Tax Act. The Supreme Court, in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), held that an assertion of the Fifth Amendment privilege would act as a complete defense to any prosecution for violation of 26 U.S.C. Section 4744(a). This court in the Martinez case recognized the retroactivity of the Leary holding, even though no privilege had been asserted at trial.

Obviously the Appellant's case does not involve the Marihuana Tax Act as in Leary and Martinez, but rather is concerned with both conspiracy and actual use of interstate communication facilities to carry on an unlawful gambling business. A Leary-Martinez-Marchetti-Nolan analogy cannot be properly drawn because the Petitioner was prosecuted under different statutes, the validity of which is not questioned, than those affected by the Marchetti and Grosso decisions. A significant difference between Martinez and the Appellant's case is therefore reflected in the extent of the Fifth Amendment privilege recognized in each situation. A timely assertion of the Fifth Amendment privilege would have provided a complete defense to a Martinez-Leary type prosecution or a Marchetti prosecution for violation of 26 U.S.C. Section 4401, et seq. But, on the other hand, an assertion of that privilege by the Appellant would not have served as a complete defense to the 18 U.S.C. Section 371 and 18 U.S.C. Section 1952 charges against him. The Petitioner's privilege would, at most, have operated only to exclude testimonial references to the tax stamp, amidst the other evidence on which the conviction was based. Nolan v. United States, 423 F.2d 1031 at 1041-1047 (10th Cir. 1970).

The Appellant urges that both the Leary and Martinez decisions support the contention that a defendant cannot waive a right unless it is a known right, and that the law of waiver as expressed in Nolan v. United States, 423 F.2d 1031 (10th Cir. 1970), has thereby been changed. It was our opinion at the time of Petitioner's initial appeal, and indeed it remains our opinion today, that the actions of Appellant or his counsel amounted to a knowledgeable waiver of the privilege against self-incrimination then being litigated in the Marchetti and Grosso cases. Both counsel were well aware of the two pending Supreme Court cases, as shown clearly by the objections of Appellant's counsel expressly predicated upon the pendency before the Supreme Court of the Marchetti and Grosso appeals, to the introduction of evidence of the stamp and tax filings of a co-defendant. That becomes even more apparent in Nolan v. United States, 395 F.2d 285 (5th Cir. 1968), which predated the Petitioner's conviction in this matter, and also concerned a 18 U.S.C. Section 1952 prosecution. This same Appellant there asserted several timely objections to the introduction of his tax filings into evidence, and had also moved to suppress them. Nolan v. United States, 395 F.2d at 286.

By contrast, in Martinez v. United States, supra, the issue was the validity...