Baughman v. United States
Decision Date | 02 July 1969 |
Docket Number | No. 3-67 Cr. 63.,3-67 Cr. 63. |
Parties | Thomas Charles BAUGHMAN, Petitioner, v. UNITED STATES of America, Respondent. |
Court | U.S. District Court — District of Minnesota |
Thomas Charles Baughman, pro se.
ORDER DENYING MOTION TO VACATE SENTENCE AND JUDGMENT
This matter is before the court on a motion by petitioner, pro se, for relief under what he has entitled, "52(b) Title 18, U.S.C., Plain Error." The court considers the petition as made pursuant to 28 U.S.C. § 2255. See Andrews v. United States, 373 U.S. 334, 338-339, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963).
Petitioner is presently in the custody of the Attorney General and confined to the Federal Correctional Institution at Danbury, Connecticut. He is held there pursuant to a judgment of this court committing him under 18 U.S.C. § 4253, the Federal Narcotics Rehabilitation Act, following his plea of guilty to an indictment charging him with a violation of 26 U.S.C. § 4704(a).1
The gist of the motion is that 26 U.S. C. § 4704(a) is unconstitutional and in violation of petitioner's right against self-incrimination under the Fifth Amendment. Petitioner claims support for his argument in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L. Ed.2d 889 (1968).2
In response to the petition the court requested and has received from the United States Attorney a memorandum of the government's views on the issue as contemplated under 28 U.S.C. § 2255. Further the court has determined that since the petitioner pled guilty and hence had no trial, and since the issue is solely a question of law, no evidentiary hearing would be necessary or helpful.
At the outset the government contends that the petitioner's objection is not timely since he pled guilty and did not raise the present claim as a bar to his conviction as suggested by Marchetti, supra, 390 U.S. at 61, 88 S.Ct. 697. While in view of the court's ruling on the merits of the petition a decision on this point is academic, the court is of the opinion that petitioner at no time knowingly waived his privilege, if any, under the Fifth Amendment and that no overwhelming policy of judicial administration is served by avoiding the merits of petitioner's claim. This is especially true since defendant's plea of guilty was entered on December 7, 1967, prior to the Marchetti decision. See United States v. Minor, 398 F.2d 511 (2d Cir. 1968); United States v. Manfredonia, 391 F.2d 229 (2d Cir. 1968). Cf. Lauchli v. United States, 402 F.2d 455 (8th Cir. 1968). What is more, his claim of privilege is one that, if valid, arose at the time of the violation of the statute and not merely at trial. United States v. Leary, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (May 19, 1969).
On the merits, the court is of the opinion that petitioner's argument is not well taken. The statute here under attack has been found constitutional and well distinguishable from those involved in Marchetti, supra, as well as from the cases of Grosso v. United States, 390 U. S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968) and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968). As recognized by Judge Lewis in Fields v. United States, 287 F.Supp. 606, 607 (E.D.Va.1968):
More important, the court does not believe that Section 4704(a) under which petitioner was convicted subjected him to a reasonable probability of self-incrimination. That section does not require any registration prefatory to or following the selling of narcotics. It simply prohibits dealing in narcotic drugs not in or from an original stamped package. Thus petitioner was convicted of dealing in narcotics which were not lawfully possessed because no tax had been paid on such by one entitled to register and pay the tax. The purpose of the statute is to insure that unlawfully imported drugs do not reach an illegal market. It is not part of an incriminatory scheme. United States v. Gladden, 296 F.Supp. 983, 985 (E.D.La.1969). See also United States v. Clark, 294 F.Supp. 1108, 1112 (W.D. Pa.1968).
Even when read in conjunction with 26 U.S.C. § 4705(a) no incriminatory scheme is apparent. That section, continuing the statutory purpose of preventing all unlawful dealing in narcotics makes it a crime to "sell, barter, exchange, or give away" narcotic drugs except in pursuance of a written order form of the buyer on Treasury Department order forms. As the Second Circuit has recognized:
United States v. Minor, 398 F.2d 511, 513 (2d Cir. 1968).
Cf. United States v. Reed, 401 F.2d 756, 762 (8th Cir. 1968).
Further, the court is of the view that under 26 U.S.C. § 4705(g) only those lawfully entitled to purchase narcotic drugs are required to register and permitted to obtain the buyer purchase order blanks. 26 C.F.R. Section 151.142. Petitioner, not being so entitled, could not have incriminated himself under these statutes. See United States v. Morales, 406 F.2d 1135 (2d Cir. 1969); United States v. Minor, 398 F.2d 511 (2d Cir. 1968); Walker v. United States, 176 F.2d 796 (9th Cir. 1949); Nunley v. United States, 288 F.Supp. 58 (W.D.Okla.1968).
During the pendency of the petition herein, the Supreme Court reversed the conviction of Timothy Leary, 383 F.2d 851 (1967) rehearing denied en banc 392 F.2d 220 (5th Cir. 1968), for violation of the Marijuana Transfer Tax Act, 26 U.S.C. § 4744(a) (2) on the ground that the registration provisions of that Act created a real and appreciable hazard of self-incrimination. The court does not believe that the Leary case is controlling as to the constitutionality of § 4704(a). In rejecting the analogy between the marijuana statute and the Harrison Narcotic Act, here at issue, the Supreme Court recognized, as stated above, that under the latter statute no one except a registrant legally entitled to deal in narcotics could lawfully obtain an order form, citing 26 U.S.C. § 4705(g), while despite administrative regulations and practice to the contrary (26 C.F.R. Sections 152.22-.23), the same was not true under the Marijuana Act. There is nothing in the Leary decision that undermines the distinctions recognized...
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