Graham v. Blackwell

• Decision Date: 03 May 1968
• Docket Number: Civ. No. 4997.
• Citation: 291 F. Supp. 761
• Court: U.S. District Court — Middle District of Tennessee
• Parties: William Condon GRAHAM, Petitioner, v. O. G. BLACKWELL, Warden, United States Penitentiary, Atlanta, Georgia, Respondent.

291 F. Supp. 761

William Condon GRAHAM, Petitioner, v. O. G. BLACKWELL, Warden, United States Penitentiary, Atlanta, Georgia, Respondent.

Civ. No. 4997.

United States District Court M. D. Tennessee, Nashville Division.

May 3, 1968.

Glenn Zell, Atlanta, Ga., for petitioner.

Gilbert S. Merritt, Jr., U. S. Atty., Nashville, Tenn., for respondent.

ORDER

WILLIAM E. MILLER, Chief Judge.

In this proceeding, pursuant to 28 U.S.C. § 2255, petitioner has moved the Court to reconsider its order denying his motion to vacate sentence.

The petitioner is presently restrained of his liberty in a United States penitentiary as a result of a sentence imposed by this Court on December 23, 1964, following a verdict of guilty upon charges of violating 26 U.S.C. § 7203, § 4401(a), § 4401(c), § 4411 and § 4412. The gist of the charges against petitioner was a failure to comply with the federal wagering tax provisions applicable to persons engaged in the business of accepting wagers and persons who have accepted wagers. Petitioner contends that his restraint is illegal in that he was convicted in violation of his constitutional right not to incriminate himself.

Two contentions are advanced by petitioner in support of his motion for reconsideration. They are: (1) the Court erred in failing to apply retroactively the rule propounded by the United States Supreme Court in 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); and (2) the Court erred in stating that the petitioner had waived his constitutional right not to incriminate himself by failing to assert the privilege at his trial. These contentions will be considered in order.

Petitioner asserts that the Marchetti and the Grosso decisions should be applied retroactively to render his present confinement illegal. Those decisions deal with factual situations closely resembling the instant case in that in each case, the petitioner had been convicted for failure to comply with the same wagering tax requirements. Both Marchetti and Grosso had protested at their trials that compliance with the federal statutory obligations violated their Fifth Amendment privilege against self-incrimination. Marchetti, supra 390 U.S. at 49, 88 S.Ct. 697; Grosso, supra at 63, 88 S.Ct. 709. On the authority of United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953), and Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955), the trial courts refused to allow the petitioners to challenge the constitutionality of the requirements on that basis. However, the Supreme Court granted certiorari to re-examine the constitutionality under the Fifth Amendment of the pertinent provisions of the wagering tax statutes and whether Kahriger and Lewis still had vitality. Stated very briefly, the Supreme Court concluded that those provisions may not be employed to punish criminally those persons who have defended a failure to comply with the requirements with a proper assertion of the privilege against self-incrimination. The Court reversed the appellate court decisions upholding the convictions for violations of the federal wagering tax statutes.

With respect to the question of whether or not a new constitutional principle should be accorded retroactive effect, the rule approved by the Supreme Court in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), is that in criminal cases concerning constitutional claims, the court may in the interest of justice make a rule prospective only where the exigencies of the situation require such an application. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). The criteria for determining whether a rule should have prospective application only are (1) the purpose to be served by the new standard, (2) the extent of the reliance by law enforcement officials upon prior decisions on the subject, and (3) the effect on the administration of justice of a retroactive application of the new standard. As stated in Linkletter, supra, the court must weigh the merits and demerits in each case. The way in which these criteria combine must inevitably vary with the rule involved and retroactivity must be determined in each case by looking to the peculiar traits in question. 381 U.S. at 629, 85 S.Ct. 1731.

This fact and the language used in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), suggest that the three criteria to be used in determining whether retroactive application is proper may be balanced by the court. In Stovall, supra, the Court, after discussing the purpose factor, referred to "the unusual force of the countervailing considerations" strengthening its conclusion in favor of prospective application. Emphasis supplied. 388 U.S. at 299, 87 S.Ct. at 1971. The Court also stated, "We regard the factors of reliance and burden on the administration of justice as entitled to such overriding significance as to make that distinction unsupportable." Emphasis supplied. Id. at 300, 87 S.Ct. at 1972.

The first criterion is concerned with the purpose of the new standard. In determining whether this criterion has been met, the Court has considered the reasoning of the Supreme Court in Johnson v. New Jersey, supra, a case dealing with whether or not retroactive effect should be accorded to the rules in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). There, having found that the prime purpose of those rulings was to guarantee full effectuation of the privilege against self-incrimination, the Supreme Court pointed out that the rulings encompass situations in which the danger of self-incrimination is not as great as when the accused is subjected to overt and obvious coercion. By suggesting that there are differences in the degree to which a person may be made to incriminate himself, the Court seems to recognize that, although the Escobedo and Miranda rules were formulated for the purpose of insuring that only reliable statements would result from in-custody interrogation, the danger of unreliability was not so great as to warrant making the decisions retroactive.

The Court is of the opinion that the Supreme Court would respond similarly to the question of whether or not the Marchetti and Grosso rule should be accorded retroactivity. The purpose of the new standard formulated in those cases is to prevent situations where prospective registrants would be compelled by the threat of federal prosecution to enhance the likelihood of their prosecution in state courts for future acts because compliance with the federal regulations could serve as decisive evidence that they have in fact subsequently violated the state gambling prohibitions. Or, stated more simply, the Supreme Court has decided that the methods employed by Congress in the federal wagering tax statutes would not be permitted to violate a person's Fifth Amendment privilege against self-incrimination with respect to possible future prosecution in a state court.

The question of whether the purpose of this newly-formulated standard will be served by retroactive application should turn upon whether this rule affects "the very integrity of the fact-finding process" and averts "the clear danger of convicting the innocent." Linkletter v. Walker, 381 U.S. at 639, 85 S.Ct. at 1743; Tehan v. Shott, 382 U.S. at 416, 86 S.Ct. at 465. Determining the effect of retroactive or prospective application of a rule is a matter of probabilities. For example, the Supreme Court gave retroactive effect to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964), a case involving a coerced confession, "* * * because confessions are likely to be highly persuasive with a jury, and if coerced they may well be untrustworthy by their very nature." Johnson v. New Jersey, 384 U.S. at 729, 86 S.Ct. at 1778. But, retroactive application was denied Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), despite the fact that comment on the defendant's failure to testify may sometimes mislead the jury concerning the reasons why the defendant has refused to take the witness stand. Johnson, supra, at 729, 86 S.Ct. 1772. Also, in Stovall v. Denno, supra, the Court refused retroactive application of the rule requiring exclusion of identification evidence when it is tainted by the accused's having been exhibited in the absence of counsel to identifying witnesses before trial. The Court held that there was little probability that the condemned practice would affect the integrity of the truth-determining process.

The situation of the instant case is not one in which the action of federal law enforcement authorities prior to the Marchetti and Grosso decisions infected the integrity of the truth-determining process. With respect to the crime with which petitioner was charged—failing to comply with the statutory obligations— the petitioner was in no way compelled by federal authorities to do anything or say anything which would facilitate his conviction on the federal charges. Rather, petitioner was motivated not to comply merely by the threat of possible state prosecution.

The question with which this Court must deal is whether, in the course of a federal investigation or trial, there was a probability or even a possibility that an innocent person may have been compelled to contribute to his own conviction for the crime of failing to comply with the federal wagering tax statutes. If so, the Marchetti and Grosso decisions should be applied retroactively so as to obviate that dangerous possibility. If not, and if there is little likelihood that an innocent person was compelled to...