Bluso v. United States
Decision Date | 08 May 1974 |
Docket Number | Crim. No. 25933. |
Parties | George J. BLUSO v. UNITED STATES of America. |
Court | U.S. District Court — District of Maryland |
Martin A. Ferris, III, Baltimore, Md., for petitioner.
George Beall, U. S. Atty., and Donald H. Feige, Asst. U. S. Atty., Baltimore, Md., for respondent.
Petitioner (Bluso) seeks a writ of error coram nobis to vacate and set aside the judgment of conviction and sentence entered herein on August 14, 1964, to remand the fine imposed and to dismiss the indictment. In the alternative, he asks that his plea of guilty to certain counts of the indictment "be withdrawn in accordance with Rule 32(d)", F.R. Crim.P., and that the judgment of conviction be "reversed".
On May 31, 1962, the Grand Jury for the District of Maryland charged Bluso and a codefendant in a seven count indictment with a conspiracy to violate and six substantive violations of the wagering tax laws.1
After mesne proceedings irrelevant to the present issues, able and experienced counsel for Bluso entered into plea bargaining negotiations with the United States Attorney and his Assistants, which resulted in an agreement: (1) that Bluso would enter pleas of guilty to Counts 3, 4 and 6, which together permitted only a one year sentence plus fines and a penalty, and (2) that the government would nol pros the remaining counts, some of which carried much heavier prison sentences. See n. 1, above.
The arrangement appeared so favorable to Bluso that the court required a full disclosure and discussion of the facts, as well as assuring itself that the pleas were voluntarily entered.
After accepting the pleas of guilty to Counts 3, 4 and 6, and conducting a sentencing hearing, the court imposed total sentences of one year's imprisonment, non-cumulative fines of $5,000, and a $50 penalty. A nolle prosequi of the other counts was entered by the government and accepted by the court.
Bluso served his sentence and has paid part of his fine. His present petition was filed on September 19, 1970, but was not pressed until August 1973, when Bluso's present counsel filed a full memorandum in support of his petition, which has been answered by the government.
At the time Bluso's pleas were entered, the Supreme Court had twice concluded that the privilege of self-incrimination could not appropriately be asserted by those in Bluso's circumstances. United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953); Lewis v. United States, 348 U.S. 419, 75 S. Ct. 415, 99 L.Ed. 475 (1955). Those decisions were applied by the trial and appellate courts in United States v. Costello, Marchetti, et al., 352 F.2d 848 (2 Cir. 1965), and United States v. Grosso, 358 F.2d 154 (3 Cir. 1966). On January 29, 1968, the Supreme Court decided Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889, and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906. The decisions were carefully summarized by Judge Winter in Greenwood v. United States, 392 F.2d 558 (4 Cir. 1968), as follows:
392 F.2d at 559.2
The Court then noted that in Greenwood the indictments were like those in Grosso, and said:
392 F.2d at 559.
The third case in the so-called Marchetti trilogy was Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L. Ed.2d 923, also decided on January 29, 1968, in which analogous principles were applied to a prosecution under the National Firearms Act. In United States v. Miller, 406 F.2d 1100 (1969), the Fourth Circuit held that Haynes should be applied retroactively.
In United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), the Court held that the Marchetti-Grosso rule had retroactive effect in a forfeiture proceeding under 26 U.S.C. § 7302. Shortly thereafter the Court vacated and remanded a number of cases for reconsideration in the light of Coin and Currency.3 See 402 U.S. 937-939.
Since the Coin and Currency decision, courts in four circuits have considered coram nobis proceedings to strike convictions in wagering tax cases and to repay the fines. DeCecco v. United States, 485 F.2d 372 (1 Cir. 1973); United States v. Summa, (2 Cir. 1973), affirming 362 F.Supp. 1177 (D.Conn.1972); United States v. Lewis, 478 F.2d 835 (5 Cir. 1973); Pasha v. United States, 484 F.2d 630 (7 Cir. 1973). In each case the court held that the petitioner's conviction should be vacated and his fine repaid.
In three of the four cases, Lewis, Summa and DeCecco, the petitioners had entered guilty pleas; but in none of those decisions did either the district court or the court of appeals discuss or cite the opinion of the Supreme Court in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), discussed below, which considered in depth the effect of a guilty plea by a criminal defendant. The apparent reason for those courts not having discussed or cited Tollett is that the decisions in the district courts were rendered before Tollett was decided, and that the government did not raise the point on appeal.4
In Tollett the Court considered the case of a man who, in 1948, in Tennessee, had plead guilty to a murder charge on the advice of his counsel. At the time he entered his plea he and his counsel were unaware of the facts relating to the selection of the grand jury which would have supported a challenge to the indictment. The Court said:
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...at 30-31, 94 S.Ct. at 2104.36 Although the Court is aware of the contrary precedent in the District of Maryland in Bluso v. United States, 375 F.Supp. 1085 (D.C.Md.1974), we find the rationale there unpersuasive.37 See Pasha v. United States, 484 F.2d 630, 632 (7th Cir. 1973); DeCecco v. Un......
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U.S. v. Bluso, 74-1691
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