U.S. v. DePoli

• Decision Date: 31 July 1980
• Docket Number: D,No. 887,887
• Citation: 628 F.2d 779
• Parties: 80-2 USTC P 9601 UNITED STATES of America, Appellee, v. John A. DePOLI, Defendant-Appellant. ocket 79-1465.
• Court: U.S. Court of Appeals — Second Circuit

Page 779

628 F.2d 779

80-2 USTC P 9601

UNITED STATES of America, Appellee, v. John A. DePOLI, Defendant-Appellant.

No. 887, Docket 79-1465.

United States Court of Appeals Second Circuit.

Argued March 11, 1980.

Decided July 31, 1980.

Jacob D. Zeldes, Bridgeport, Conn. (Joseph C. Gasparrini and Zeldes, Needle & Cooper, P. C., Bridgeport, Conn., of counsel), for defendant-appellant.

Richard Blumenthal, U. S. Atty. for the District of Connecticut, New Haven, Conn. (Michael Hartmere, Asst. U. S. Atty., New Haven, Conn., of counsel), for appellee.

Before MANSFIELD and FRIENDLY, Circuit Judges, and SIFTON, ^* District Judge.

SIFTON, District Judge.

This is an appeal by John DePoli from his conviction entered upon a plea of nolo contendere to one count of a two-count indictment which charged him with willful evasion of personal income taxes owed by DePoli and his wife for the calendar years 1973 and 1974 in violation of 26 U.S.C. § 7201. DePoli's plea was accepted by Judge T. F. Gilroy Daly of the District of Connecticut following the judge's disposition by rulings from the bench of a series of pre-trial motions. DePoli's motions questioned the methods by which the investigation leading to defendant's indictment was conducted, the method of selection of grand juries in the District of Connecticut, and the method by which the government proposed to prove its case at trial. At the time of plea, DePoli's attorney "reserved" the right to appeal Judge Daly's disposition of the pre-trial motions, but neither requested nor obtained the consent of Judge Daly to this procedure. Our prior cases have made clear that such consents, as well as the consent of the Government counsel, are required in all cases involving pleas contingent on preserving a right to appeal rulings with regard to non-jurisdictional defects in a criminal prosecution and that in their absence a plea of guilty or nolo contendere may result in a waiver of objections to such defects in the prosecution. United States v. Doyle, 348 F.2d 715, 719 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965); United States v. Mann, 451 F.2d 346, 347 (2d Cir. 1971); United States v. Selby, 476 F.2d 965, 967 (2d Cir. 1973); and see United States v. Rothberg, 480 F.2d 534, 535 (2d Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 159, 38 L.Ed.2d 106 (1973); United States v. Faruolo, 506 F.2d 490, 491 n.2 (2d Cir. 1974); United States v. Burke, 517 F.2d 377, 379 (2d Cir. 1975); United States v. Fury, 554 F.2d 522, 524 n.2 (2d Cir.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977); United States v. Coyne, 587 F.2d 111, 115 (2d Cir. 1978); and United States v. Price, 599 F.2d 494 (2d Cir. 1979). ¹ We conclude that failure to follow the procedures set forth in our earlier cases has resulted in a waiver of certain of appellant's arguments in the circumstances here presented. With regard to the other arguments raised on this appeal, we have considered them on the merits and affirm the judgment below.

DePoli's principal complaint on this appeal concerns Judge Daly's denial of his motion to suppress evidence said to have been derived from the probation office files created in connection with a probationary term imposed on DePoli by the Connecticut District Court in 1963. DePoli's 1963 sentence followed his plea of guilty to an indictment which charged him with engaging in the business of accepting wagers without registering or paying the special occupational tax owed by persons in that business, a type of prosecution which was, subsequent to his conviction, held unconstitutional in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). See Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); 26 U.S.C. § 4401 et seq.

DePoli's argument is twofold. First, he contends that, since his probation was served pursuant to a judgment of conviction which was vacated in United States v. Summa, DePoli et al., 362 F.Supp. 1177 (D.Conn.1972), aff'd without opinion, Docket No. 73-7161 (2d Cir. August 14, 1973), as a result of the Supreme Court's decisions in Marchetti and Grosso, it was improper thereafter for an IRS agent to examine the files generated as a result of the probationary sentence. Second, DePoli argues that disclosure of the probation office files to the IRS agent without court approval violated Rule 32 of the Federal Rules of Criminal Procedure, a violation which he contends warranted suppression of all evidence derived from that act.

DePoli's first argument, that his statements to his probation officer were tainted by reason of the fact that they derived from his vacated conviction, takes two forms. First, DePoli regards his statements to his probation officer as involuntary because made in ignorance of the fact that he had an absolute fifth amendment defense to prosecution for violation of the wagering tax laws. The argument relies on too literal an identification of voluntariness with "knowing" choice. See Schneckloth v. Bustamonte, 412 U.S. 218, 224, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973). DePoli's will was not "overborne" or "his capacity for self-determination critically impaired" by his probation officer. Id. at 225, 93 S.Ct. at 2047. On the contrary, the invalidity of DePoli's conviction was, on this record, a matter concerning which both the probation officer and DePoli were equally ignorant or which both were equally able to predict. We see no basis for concluding that DePoli's statements to his probation officer resulted from an involuntary waiver of his fifth amendment privilege simply because of their shared ignorance of the invalidity of the prosecution on which DePoli's conviction was based.

DePoli's second point is that his statements to his probation officer must be suppressed because they would not have been made but for his prosecution under a statute which could not be constitutionally enforced against him. This contention must also be rejected. The view that an unconstitutional law should be treated as having had no effects whatsoever from the date of its enactment, see, e. g., Norton v. Shelby County, 118 U.S. 425, 442, 6 S.Ct. 1121, 1125-1126, 30 L.Ed. 178 (1886), has been replaced by a more realistic approach which recognizes that "(t)he actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored." Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 318, 84 L.Ed. 329 (1940). Whether a particular consequence of an unconstitutional conviction can be "justly ignored" will depend on the reason for which the conviction was invalidated and the nature of the particular consequence sought to be avoided, among other factors, ibid; Lemon v. Kurtzman, 411 U.S. 192, 198-99, 93 S.Ct. 1463, 1468, 36 L.Ed.2d 151 (1973) (Lemon II) (plurality opinion). Thus, where the reason for invalidating a prosecution was, as in Marchetti and Grosso, that it sought to punish conduct protected by the fifth amendment, any punishment, including not only the conviction, but the collection of fines and the prosecution of criminal forfeitures, is required to be terminated because "we have held that the conduct being penalized is constitutionally immune from punishment." United States v. United States Coin and Currency, 401 U.S. 715, 724, 91 S.Ct. 1041, 1046, 28 L.Ed.2d 434 (1971).

It is a far cry from United States v. United States Coin and Currency, supra, to this case, however. The consequence here sought to be ignored is not, on this record, part of the punishment of DePoli for engaging in constitutionally protected behavior, i. e., his failure to register as a gambler or to purchase a wagering tax stamp. It was, instead, part of an IRS investigation of DePoli for the crime of tax evasion. To rule that records created during the course of DePoli's sentence and probation, in effect, do not exist would not serve the purpose for which his conviction was set aside. On the other hand, it would ignore the "fact of legal life (which) underpins our modern decisions recognizing a doctrine of nonretroactivity," namely, "our recognition that . . . rules of law are hard facts on which people must rely in making decisions and in shaping their conduct." Lemon v. Kurtzman, supra, 411 U.S. at 199, 93 S.Ct. at 1468 (plurality opinion).

We turn, then, to DePoli's claim that Rule 32 of the Federal Rules of Criminal Procedure prohibited the disclosure of information derived from DePoli's presentence report and record as a probationer without prior court approval and that the failure to obtain prior court approval for the disclosure to the IRS agent merits suppression of all evidence derived from that examination.

The most obvious answer to this claim is that Judge Daly found that nothing "used to establish this case" was derived from the examination of the files of the probation department since "(t)he government has established that independent and alternative sources were used to establish this case aside from the information . . . gathered . . . from the probation report." (A. at 135.) This ruling is, on the record before us, not clearly erroneous.

The investigation which led to DePoli's indictment had numerous sources, apart from the visit to his probation officer, including contacts with the Connecticut State Police, who provided evidence concerning DePoli's prior activities as a bookmaker and his previous criminal record; information supplied by the Connecticut Strike Force; DePoli's personal tax returns, which disclosed some of his business interests, his address and those of his relations; the United States Post Office, which supplied information concerning his correspondents from a mail watch, discussed more at length below; a tape recording of a conversation discussing DePoli's bookmaking business; a check of Connecticut court records of deeds and mortgages; an interview with DePoli; and...