Masterson v. United States

• Decision Date: 03 December 1968
• Docket Number: Civ. A. No. 3548.
• Citation: 293 F. Supp. 787
• Parties: Timothy J. MASTERSON, Sr., and Timothy J. Masterson, Jr., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Delaware

293 F. Supp. 787

Timothy J. MASTERSON, Sr., and Timothy J. Masterson, Jr., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 3548.

United States District Court D. Delaware.

December 3, 1968.

B. Wilson Redfearn and Morton Richard Kimmel, Wilmington, Del., for plaintiff.

Alexander Greenfeld, U. S. Atty., and L. Vincent Ramunno, Asst. U. S. Atty., Wilmington, Del., for United States.

OPINION

STEEL, District Judge.

On September 12, 1966, the Government filed an information alleging in Count I that the defendants — father and son — who were then and there engaged in the business of accepting wagers, had willfully failed to register with and furnish information to the District Director of Internal Revenue for the fiscal year ended June 30, 1965, as required by Title 26 U.S.C. § 4412, in violation of Title 26 U.S.C. § 7203. After pleading not guilty on September 12, 1966, defendants changed their plea to guilty on December 6, 1966.

On June 2, 1967, the Court suspended the imposition of sentence and placed each defendant on probation for a period of two years. At the same time, Counts II through VI were dismissed upon application of the Government, and are of no present concern.

On January 29, 1968, the Supreme Court held that a proper assertion of the privilege against self-incrimination would be a complete defense to the violation of 26 U.S.C. § 4412 for which the defendants in the case at bar were convicted. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). In Marchetti, the defendant had properly asserted the privilege by moving to arrest the entry of judgment following the verdict.

On the same date the Supreme Court in Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968) set aside the conviction of a defendant for willfully failing to pay the wagering occupational tax required by 26 U.S.C. § 4411.¹ Neither in the lower courts nor before the Supreme Court, had Grosso claimed the Fifth Amendment privilege against self-incrimination.

When the Grosso case was tried the current state of the law was that stated in United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953), and in Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955). Kahriger had held that compliance with the tax provisions imposed by 26 U.S.C. (Supp. V) § 3285, the forerunner of 26 U.S.C. § 4401, and the registration required by 26 U.S.C. (Supp. V) § 3291, the forerunner of 26 U.S.C. § 4412, did not contravene the privilege against self-incrimination guaranteed by the Fifth Amendment. Lewis had held that compliance with the occupational tax imposed by 26 U.S.C. § 3290, the forerunner of 26 U.S.C. § 4411 was not in derogation of the protection of the Fifth Amendment against self-incrimination. Because Kahriger and Lewis foreclosed any effective assertion by Grosso of his privilege against self-incrimination, the Supreme Court held in reviewing his case that his failure to raise the defense constituted no waiver of his constitutional right. It said at 390 U.S. at 71, 88 S.Ct. at 715:

"Given the decisions of this Court in Kahriger and Lewis, supra, which were on the books at the time of petitioner's trial, and left untouched by Albertson v. SACB, supra, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165, we are unable to view his failure to present this issue as an effective waiver of the constitutional privilege."

In addition, the Court found that the record was barren of any other evidence on which a finding of waiver of the privilege might be based. 390 U.S. at 71, 88 S.Ct. 709.

On May 24, 1968, the defendants (so referred to hereafter) began the present action under 28 U.S.C. § 2255 to vacate their convictions and sentences, basing their right to relief upon the holdings in the Marchetti and Grosso cases. The action presents two questions, i. e., (1) whether defendants by failing to assert their privilege against self-incrimination before being sentenced and by pleading guilty thereby waived their right to assert it now, and (2) whether the principles announced in Marchetti and Grosso, supra, six months after defendants' convictions, apply retroactively to them. The second question need not be decided since the answer to the first is adverse to defendants and requires a dismissal of the petition.

Courts will indulge every reasonable presumption against finding a waiver of basic constitutional rights. Glasser v. United States, 315 U.S. 60, 71, 62 S.Ct. 457, 86 L.Ed. 680 (1941). In order for a defendant to be held to have waived his constitutional rights, a court must ordinarily find that the defendant has made an "intelligent relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). A waiver must be the result of a "considered choice" by the defendant. Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1962). Thus a defendant who, after consulting with competent counsel, understandingly and knowingly foregoes the right to assert a federal claim at trial or on appeal for strategic, tactical or practical reasons, waives the right later to assert it on collateral attack. See Henry v. Mississippi, 379 U.S. 443, 451-452, 85 S.Ct. 564, 13 L.Ed.2d 408 (1964); Fay v. Noia, supra, 372 U.S. at 439, 83 S.Ct. 822.

Applying these standards, we view the actions of defendants as a waiver of the right to assert a privilege against self-incrimination. A hearing was held on October 25, 1968, on the waiver issue. Based upon the evidence then adduced, and from other records in the files of the Court, the following facts appear:

On July 7, 1965, two informations were filed in this District in Criminal Actions Nos. 1711 and 1712, which charged that the respective defendants in the instant case were engaged in the business of accepting wagers, and had unlawfully failed to pay the special occupational tax demanded by 26 U.S.C. § 4411, for the fiscal years ended June 30, 1965 and 1966. Almost immediately thereafter defendants retained an experienced Delaware attorney who had represented other persons charged with offenses like those facing defendants. Thereafter he continuously represented defendants in Criminal Actions Nos. 1711 and 1712, in Criminal Action No. 1795 (discussed below) and in the pending Civil Action under § 2255. He also represented defendants in corporate legal matters.

On July 16, 1965, defendants moved to dismiss the informations in Criminal Actions Nos. 1711 and 1712, alleging, among other things, that "the charge in question is unconstitutional". This defense was asserted because defendants' attorney was of the opinion that Kahriger and Lewis notwithstanding, compliance with the statute which defendants had been charged with violating would force defendants to incriminate themselves. On February 14, 1966, defendants' attorney wrote to the Court stating that, after "conferences and agreements" with the United States Attorney, he was withdrawing various motions, including the motions to dismiss. Accordingly, the latter were never acted upon by the Court. On September 13, 1966, upon motion of the Government, the informations were dismissed.

Meanwhile, the day before the dismissal of Nos. 1711 and 1712, the Government had filed a single information against both defendants in Criminal Action No. 1795. Defendants were convicted under Count I of this information after changing their initial plea of not guilty to guilty. It is from this conviction that defendants now seek relief under § 2255.

The reasons that caused defendants to change their pleas were testified to by their attorney at the hearing on October 25, 1968. He stated that before the defendants did so he had discussed with them whether he should make the contention that compliance with § 4412 would be self-incriminatory and contrary to their Fifth Amendment guarantees. He said that at the time he was retained by the defendants he was familiar with United States v. Kahriger, supra, and Lewis v. United States, supra, and had told the defendants that he was of the opinion that the District Court had no choice except to follow Kahriger and Lewis, supra, until they were overruled. But he also testified that it was his opinion at that time that the Kahriger and Lewis cases were "completely illogical" and that "in light of the modern trend" these cases would probably be overruled by the Supreme Court. He, therefore, advised defendants that if they asserted that compliance with the statutes would violate their constitutional rights against self-incrimination, the charges against them would probably ultimately be dismissed, but that they would have to go "all the way to the Supreme Court" to sustain the validity of their position. The defendants were unwilling to bear the expense of an appeal and were also concerned about the expense involved in the trial itself. They were told by their attorney that those who, like themselves, were charged with similar offenses and had no previous criminal record, had been given suspended sentences with probation. It was in the light of the totality of this advice that the defendants elected to enter guilty pleas rather than assert the Fifth Amendment privilege and go to trial. These same considerations entered into the decision by the defendants to withdraw their motions to dismiss in Criminal Actions Nos. 1711 and 1712.

The determination by defendants not to rely upon their constitutional privilege against self-incrimination was not based upon the assumed validity of the Kahriger and Lewis cases. On the contrary, defendants had been advised that these decisions probably would not stand up upon reexamination. In entering guilty pleas without making a contest on the issue of constitutional privilege, defendants were motivated solely by practical considerations. Under these circumstances, when defendants determined not to attack § 4412 on the ground that compliance would...