Cooper v. United States

• Decision Date: 04 April 1986
• Docket Number: 85-1074-Civ-J-12,No. 80-67-Cr-J-M,85-1150-Civ-J-12.,85-1045-Civ-J-12,85-1046-Civ-J-12,85-1086-Civ-J-12,80-67-Cr-J-M
• Citation: 639 F. Supp. 176
• Parties: George Washington COOPER, III, Jerry Herbert Jones, Ferrol "Bud" McKinney, Curtis R. Snipes, John C. McCulloch v. UNITED STATES of America.
• Court: U.S. District Court — Middle District of Florida

639 F. Supp. 176

George Washington COOPER, III, Jerry Herbert Jones, Ferrol "Bud" McKinney, Curtis R. Snipes, John C. McCulloch v. UNITED STATES of America.

Nos. 80-67-Cr-J-M, 85-1045-Civ-J-12, 85-1046-Civ-J-12, 85-1074-Civ-J-12, 85-1086-Civ-J-12, 85-1150-Civ-J-12.

United States District Court, M.D. Florida, Jacksonville Division.

April 4, 1986.

Eugene Loftin, Jacksonville, Fla., for George Washington Cooper, III, Jerry Herbert Jones and Curtis R. Snipes.

David R. Fletcher, Jacksonville, Fla., for Ferrol "Bud" McKinney.

Hugh A. Carithers, Jr., Jacksonville, Fla., for John C. McCulloch.

Curtis Fallgatter, Asst. U.S. Atty., Jacksonville, Fla., for U.S.

ORDER AND MEMORANDUM OPINION

MELTON, District Judge.

I. Introduction

Each of the five above-named petitioners has moved, pursuant to 28 U.S.C. § 2255 (1982), to set aside his convictions in Middle District of Florida Criminal Case No. 80-67-Cr-J-12. All petitioners rely on the opinion of Dowling v. United States, ___ U.S. ___, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985) in support of their motions. Before discussing the applicability of that opinion to the instant case, a brief review of the procedural history of this prosecution is appropriate.

On July 29, 1980, a 78-count indictment was returned in this case. The indictment charged six different types of criminal violations: RICO (Racketeering Influenced Corrupt Organizations) conspiracy, 18 U.S.C. § 1962(d) (1982)¹; RICO substantive, 18 U.S.C. § 1962(c) (1982); interstate transportation of stolen property, 18 U.S.C. § 2314 (1982); wire fraud, 18 U.S.C. § 1343 (1982); copyright conspiracy, 18 U.S.C. § 371 (1982); and copyright substantive violations, 17 U.S.C. §§ 106(3) and 506(a) (1982). The Table of Petitioners and Counts Convicted (Appendix I) sets forth a comprehensive listing of the various counts for which each petitioner was convicted.

The indictment in this case arose from the discovery of a group of individuals involved in large scale distribution of "pirate" eight-track and cassette tapes.² The copyright violations charged in the indictment alleged that petitioners criminally infringed the copyright in certain sound recordings. The wire fraud violations alleged that petitioners used the telephone system in furtherance of a scheme to defraud copyright owners, sound recording companies, recording artists and musicians, the public and other individuals and businesses dealing in and purchasing phonorecords. The interstate transportation of stolen property counts involved herein charged that petitioners were engaged in the interstate transportation of pirate tapes of a value in excess of $5,000. Finally, the RICO conspiracy and substantive counts alleged that the above-named petitioners were employed by and associated with a criminal enterprise, which in this case consisted of a group of individuals associated in fact to operate an eight-track and cassette tape copyright infringement scheme. Petitioners were alleged to have participated in the conduct of the enterprise's affairs through a pattern of racketeering activity which consisted of predicate acts of interstate transportation of stolen property and wire fraud.

The trial jury was sworn and evidence in the case was first presented on January 26, 1981. The government rested its case in chief on February 19, 1981, and all evidence was concluded on February 23, 1981. The jury verdicts were returned on March 4, 1981, and petitioners were sentenced on May 22, 1981. The sentences received by petitioners are set forth in the Table of Sentences (Appendix II).

Petitioners appealed their convictions, alleging, inter alia, that the interstate transportation of infringed copyrighted sound recordings did not violate the National Stolen Property Act, 18 U.S.C. § 2314 (1982). This contention was rejected on appeal and petitioners' convictions were affirmed. United States v. Drum, 733 F.2d 1503 (11th Cir.), cert. denied, ___ U.S. ___, 105 S.Ct. 543-44, 83 L.Ed.2d 431 (1984). Approximately six months after the United States Supreme Court denied certiorari in Drum, the Supreme Court rendered its decision in Dowling v. United States, ___ U.S. ___, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985). Petitioners responded to the issuance of this decision by filing their respective § 2255 motions, which were received herein on various dates between August 6, 1985, and September 17, 1985.

II. Jurisdiction over the Petitions

A threshold issue that must be addressed by the Court is whether petitioners are entitled to collaterally attack their federal convictions on the basis that the Dowling decision has changed the substantive law applicable to their cases. In Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), the United States Supreme Court established the rule that a § 2255 petitioner is not precluded from raising a legal issue which was determined against him in a direct appeal if new law has been made since the trial and appeal. Id. at 341-42, 94 S.Ct. at 2302-03. Furthermore, the fact that a claim is grounded "in the laws of the United States," rather than in the Constitution, does not affect its viability in a § 2255 petition. Id. at 346, 94 S.Ct. at 2305. However, the Supreme Court noted that not every "asserted error of law can be raised on a § 2255 motion." Id. Rather, a court must inquire as to whether the claimed error represents "a fundamental defect which inherently results in a complete miscarriage of justice." Id., citing Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962).

Applying these doctrines to the case sub judice, the Court has determined that it has jurisdiction over the instant § 2255 petitions. These petitions arise from a significant change in the law effected by Dowling v. United States, ___ U.S. ___, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985). Because the application of this decision to petitioners' convictions may result in a finding that these convictions were "fundamentally defective," the Court will examine the merits of the § 2255 petitions now presently pending.

III. Whether the Dowling Decision Should be Given Retroactive Effect

As noted above, the § 2255 petitions presently under consideration are premised upon the United States Supreme Court's decision in Dowling v. United States, ___ U.S. ___, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985). This decision held that criminal penalties could not be imposed under the National Stolen Property Act, 18 U.S.C. § 2314 (1982), for the interstate transportation of pirate records or tapes. The crime of interstate transportation of stolen property under 18 U.S.C. § 2314 (1982) consists of the interstate transportation of goods, wares or merchandise having a value in excess of $5,000 by a defendant who knows that the goods have been "stolen, converted or taken by fraud." In Dowling, the Supreme Court held that "phonorecords that include the performance of copyrighted musical compositions for the use of which no authorization has been sought nor royalties paid are not `stolen, converted or taken by fraud' for the purposes of § 2314." Dowling v. United States, ___ U.S. at ___, 105 S.Ct. at 3133. Because the criminal prosecutions that are the subject of the pending § 2255 petitions involved, inter alia, charges under 18 U.S.C. § 2314 (1982) stemming from the interstate transportation of pirate tapes, petitioners argue that Dowling has a significant impact upon their convictions. Before the Court can address the various arguments set forth by petitioners, however, it must determine whether the holding in Dowling should be given retroactive effect.

A review of relevant case law reveals the existence of divergent tests on the question of retroactivity. In cases such as this involving the retroactivity of a nonconstitutional decision, courts have generally applied a three-part test which involves questions concerning the novelty of the decision and the equities involved in applying the decision to a given case. See, e.g., Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). A second test, however, merely looks at whether "the new principle deprived the trial court of its very authority to convict or punish a criminal defendant in the first place." Acoff v. Abston, 762 F.2d 1543, 1549 (11th Cir.1985). This test, premised on "fundamental fairness and due process" is applicable in cases where a defendant has been convicted of an act that the law no longer classifies as criminal. See McClain v. United States, 643 F.2d 911, 913 (2d Cir.), cert. denied, 452 U.S. 919, 101 S.Ct. 3057, 69 L.Ed.2d 424 (1981). Such a conviction constitutes a "complete miscarriage of justice" and mandates § 2255 relief. Id., citing Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974).

The Court is of the opinion that this latter test is appropriately applied to the instant case. Because the Dowling decision held that the National Stolen Property Act did not cover the activity that petitioners were charged with engaging in, this Court lacked jurisdiction to convict petitioners under that statute. Accordingly, the Court will vacate the convictions of petitioners under counts alleging interstate transportation of stolen property. The Table of Petitioners and Counts Convicted (Appendix I) illustrates that this ruling will result in the vacatur of petitioner Jerry Herbert Jones' convictions under Counts 4-9, petitioner John C. McCulloch's convictions under Counts 4-9 and petitioner Ferrol "Bud" McKinney's conviction under Count 3.

IV. Dowling Does Not Affect Wire Fraud Convictions

Having determined that the Dowling decision should be applied retroactively, and having drawn the obvious conclusion from such a determination that petitioners' convictions for interstate transportation of stolen property must be vacated, the Court will now examine petitioners' contentions concerning the more subtle effects of Dowling upon their convictions.

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