Gaitan v. United States, 7270.

• Decision Date: 19 June 1963
• Docket Number: No. 7270.,7270.
• Citation: 317 F.2d 494
• Parties: Joseph Aguilar GAITAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

317 F.2d 494 (1963)

Joseph Aguilar GAITAN, Appellant, v. UNITED STATES of America, Appellee.

No. 7270.

United States Court of Appeals Tenth Circuit.

April 22, 1963.

Rehearing Denied June 19, 1963.

Leonard Ripps, Denver, Colo., for appellant.

Lawrence M. Henry, U. S. Atty. for Dist. of Colorado (Michael C. Villano, Asst. U. S. Atty. for Dist. of Colorado, with him on the brief), for appellee.

Before MURRAH, Chief Judge, and BREITENSTEIN and HILL, Circuit Judges.

BREITENSTEIN, Circuit Judge.

For the third time appellant Gaitan seeks relief from his conviction on narcotics charges. In a direct appeal from the judgment of conviction he contended that his Fourth Amendment rights had been denied by the rejection of his motion, under Rule 41(e), F.R.Crim.P., to suppress evidence consisting in part of a quantity of marijuana illegally seized from his premises by local police officers. Over objection, the marijuana was received in evidence against him. The conviction was affirmed, Gaitan v. United States, 10 Cir., 252 F.2d 256, under the then recognized silver platter doctrine.¹ Certiorari was denied, 356 U.S. 937, 78 S.Ct. 779, 2 L.Ed.2d 812.

After the decisions in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, and Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688, overturning the silver platter doctrine, Gaitan brought a proceeding under 28 U.S.C. § 2255 for relief from the conviction on the ground that the receipt in evidence of the illegally seized marijuana violated the Fourth Amendment. The trial court denied relief and its judgment was affirmed by this court in Gaitan v. United States, 10 Cir., 295 F.2d 277, the decision holding that there was no question as to the jurisdiction over the person and the offense; that the sentence was within the statutory limit; and that the admissibility of the evidence was res judicata as between Gaitan and the United States.² Certiorari was again denied, 369 U.S. 857, 82 S.Ct. 939, 8 L.Ed. 2d 15.

In the instant application, his second under § 2255, Gaitan contends that a Western Union money order receipt was wrongfully received in evidence because it had been illegally seized by local officers,³ and that its use against him violated the provisions of the Fifth Amendment relating to self-incrimination. In denying relief, without a hearing, the court below found, from the record of the narcotics trial, that the money order receipt had been received in evidence at the trial without any objection. Such finding is not contested.

A § 2255 proceeding is a collateral inquiry into the validity of a conviction,⁴ commensurate with the remedy previously available by habeas corpus,⁵ and the grounds for relief are limited to those which may be raised on collateral attack.⁶ This court has consistently held that errors in the admission of evidence must be reviewed on appeal and do not afford a basis for collateral attack.⁷

In Bowen v. Johnston, Warden, 306 U.S. 19, 24, 59 S.Ct. 442, 83 L.Ed. 455, the Supreme Court held that habeas corpus was available when, in the trial proceedings, the accused's constitutional rights had been denied. The same principle applies to a § 2255 proceeding. As we read Elkins, the rejection of the silver platter doctrine is not placed on constitutional grounds but rather on the Court's supervisory power over the administration of criminal justice in the federal courts, under which the Court has, "from the very beginning of its history, formulated rules of evidence to be applied in federal criminal prosecutions."⁸ If all we have in the instant case is a change in the rules of evidence, on other than constitutional grounds, the § 2255 remedy is an impermissible collateral attack.

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, was concerned with the admissibility of illegally seized evidence in a state criminal trial. In overruling Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, and in holding the exclusionary rule applicable to state court prosecutions, the opinion of the Supreme Court rejects the theory that such rule is a rule of evidence and holds that it "is an essential part of both the Fourth and Fourteenth Amendments."⁹ Mr. Justice Black in his concurring opinion says that "when the Fourth Amendment's ban against unreasonable searches and seizures is considered together with the Fifth Amendment's ban against compelled self-incrimination" a constitutional basis emerges for the exclusionary rule.¹⁰ Although the Mapp decision does not directly overrule the Elkins holding that the exclusionary rule is a rule of evidence within the control of the supervisory power of the Supreme Court, and although Mapp discloses no agreement among a majority of the Court as to the constitutional basis for the exclusionary rule, we take it that, under Mapp, the issue of the admissibility of illegally seized evidence has a constitutional basis and, hence, the § 2255 remedy is available.

We are asked to re-examine our decision on the appeal from the denial of the first § 2255 application in the light of Hall v. Warden, Maryland Penitentiary, 4 Cir., 313 F.2d 483. In that habeas corpus proceeding, brought by a defendant convicted in state court and sentenced to death, the federal court was faced with a situation wherein, prior to Mapp, a state supreme court had affirmed a conviction after a trial in which illegally seized evidence was used. The Fourth Circuit granted relief, saying that the Mapp rule had retroactive application. The court placed controlling emphasis on the point that, between the decisions in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, and the decision in Mapp, no change had been made in the constitutional requirements found controlling in Mapp. The court said: "It must be recognized that, since Weeks and Wolf, there had been no change in the constitutional requirements of due process considered and found controlling in Mapp. If the protections are there now, were they not present when Wolf was decided and were they not present when Hall was tried, convicted and sentenced? An affirmative answer would appear to be inescapable."

We can answer the question presented to us with no such assurance.¹¹ The issue is not the admissibility of the illegally seized evidence. Rather the issue is whether due process of law, as guaranteed by the Fifth Amendment, requires the voiding of Gaitan's conviction because of a subsequent decisional change in the interpretation of the Constitution. We are aware of no controlling decision of the Supreme Court.

In Vandenbark v. Owens-Illinois Glass Company, 311 U.S. 538, 543, 61 S.Ct. 347, 350, 85 L.Ed. 327, the Supreme Court said that federal trial and appellate tribunals "should conform their orders to the state law as of the time of the entry." The same principle applies to federal law.¹² At the time Gaitan was tried and at the time his appeal from the judgment of conviction was heard, the law of the land permitted the receipt of the evidence with which we are concerned. The Supreme Court now says that such evidence is not admissible. The decisions permitting admissibility and the decisions denying admissibility were renderby the same tribunal. The assertion that the later decisions were always the law departs from reality. Under the decisions controlling at the time of Gaitan's trial and appeal, the district court had the power to receive the evidence and the court of appeals had the duty to uphold that power. A subsequent denial of the power does not mean that the power never existed.¹³ Stability of judicial administration is strengthened by the application of the due process principle in accordance with the law existing at the time of the judicial decision determining rights and responsibilities. Contrariwise, that stability is weakened if due process requires the retroactive application of decisional changes in the common law, of changes in statutory law, of changes in statutory construction, of changes in the Constitution, and of changes in constitutional interpretation, to invalidate antecedent final judgments.

We find nothing in Elkins, Rios, or Mapp which says whether those decisions should be applied retroactively or prospectively. The Supreme Court was concerned with the cases then before it and the question of the application of those decisions to cases which had previously gone to final judgment was not presented. We have such a case and must resolve the problem with full recognition that only the Supreme Court can give the final answer.

In the Hall decision, the Fourth Circuit notes that the Supreme Court did not limit Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, to prospective operation although the concurring opinion of Mr. Justice Frankfurter urged that it do so, and further notes the retroactive application of the Griffin rule in Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269. Those cases were concerned with the constitutional right of an indigent to a free transcript of his criminal trial so that he could perfect an appeal. They did not overturn any previous decisions interpreting the Federal Constitution. Eskridge does not say that the Griffin rule must be applied retroactively in all situations.¹⁴

The question of the impact of due process on situations wherein a decisional change has been made in the applicable law has arisen before. In Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360, the Supreme Court held that it is for the state courts to decide whether changes in their views of the common or statutory law shall apply to intermediate transactions, and, in an opinion by Mr. Justice Cardozo, said:¹⁵ "The choice for any state may be determined by the juristic philosophy of the judges of her courts, their conceptions of law, its...