United States v. Lenardo, Crim. A. No. 74-323.

• Decision Date: 08 September 1976
• Docket Number: Crim. A. No. 74-323.
• Citation: 420 F. Supp. 1148
• Parties: UNITED STATES of America v. Joseph C. LENARDO, Defendant.
• Court: U.S. District Court — District of New Jersey

420 F. Supp. 1148

UNITED STATES of America v. Joseph C. LENARDO, Defendant.

Crim. A. No. 74-323.

United States District Court, D. New Jersey.

September 8, 1976.

Jonathan L. Goldstein, U. S. Atty., Newark, N. J. by Richard D. Gregorie, Sp. Atty., Organized Crime Section, Dept. of Justice, for plaintiff.

Louis P. Caroselli, Jersey City, N. J., for defendant.

OPINION

COOLAHAN, Senior District Judge.

This case comes before the Court on remand from the Third Circuit Court of Appeals for a determination of (1) the applicability of United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), to a case pending on direct appeal at the time Hale was decided, and (2) whether Hale requires a new trial under the circumstances of this case. After the remand, the United States Supreme Court decided Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), which determined the constitutional issue left open in Hale. Because of the relevance of Doyle to the questions presented upon remand, the Court has considered the impact of that decision as well. These cases prohibit the use of a defendant's silence, after he has received his warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), at the time of his arrest, to impeach his exculpatory trial testimony.

On March 14, 1975, after a two-day jury trial, Joseph C. Lenardo was found guilty of conspiracy to embezzle, steal and possess firearms stolen from interstate commerce, embezzlement and theft of an interstate shipment of firearms, and knowing possession of embezzled and stolen firearms, in violation of 18 U.S.C. §§ 371, 659. On April 29, 1975, this Court sentenced the defendant to three concurrent three-year terms. Lenardo filed his notice of appeal on May 5, 1975. On June 23, 1975, while the appeal was pending, the United States Supreme Court decided United States v. Hale, supra. The Third Circuit ordered the case remanded, for consideration in light of Hale, on February 2, 1976. The United States Supreme Court rendered its decision in Doyle v. Ohio, supra, on June 17, 1976. This Court must now consider the retroactivity problem.

In Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), the Court noted that retroactivity is a function of three factors, first formulated in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and fully articulated in Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967):

". . . (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards."

The Court in Desist observed that "foremost among these factors is the purpose to be served by the new" standards. 394 U.S. at 249, 89 S.Ct. at 1033. If the purpose of the new standards is to ensure "fairness of the trial" or "the very integrity of the fact-finding process," Linkletter v. Walker, supra, 381 U.S. at 639, 85 S.Ct. at 1743, the Court will apply the standards retroactively, unless the other factors strongly suggest a contrary result.

However, our courts apply new standards not only completely retrospectively or completely prospectively, but, at times, somewhere in between.

Strictly speaking, when the Supreme Court announces a new rule, interpretation, or standard, if it applies that rule, interpretation, or standard to the litigants then before it, the Court is applying the rule retroactively.

In Linkletter v. Walker, supra, 381 U.S. at 621-22, 85 S.Ct. at 1733, the Court noted that a "ruling which is purely prospective does not apply even to the parties before the court. See, e. g., England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 84 S.Ct. 461, 11 L.Ed.2d 440 (1964)." Rarely does the Court apply a rule purely prospectively so as to deny the litigants, who successfully challenged the old standard, the benefit of their endeavors. In fact, purely prospective application of new standards is in disfavor. I can find no criminal procedure cases since Linkletter where a rule was purely prospectively applied.

A court may also apply a new rule to cases pending on direct appeal at the time the new standard is enunciated. This is what is called partial retroactivity. The reasoning here is that those who raise the issue contemporaneously with the litigant who successfully challenged the old standard should not be denied the application of the new standard just because they were not fortunate enough to have their appeal litigated first.

Lastly, there is complete retroactive application, which means that the court applies the new standard to all cases whenever decided.¹

The Supreme Court applied the new rule to the defendants, Hale and Doyle, who raised them. Therefore, the Court has made clear that it does not wish to apply the new standard purely prospectively.

Defendant argues that Hale should be applied to all cases on direct appeal when Hale was decided. He asserts that the general rule is that all new standards are applied partially retroactively, that is, new standards are applied to all cases on direct appeal at the time the new standards are announced.

However, there is a line of cases starting with Johnson v. New Jersey, 384 U.S. 719, 732, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), which suggest that the Linkletter test makes no distinction between partial and full retroactive application. See, Desist v. United States, supra, 394 U.S. 244, 89 S.Ct. 1048, 22 L.Ed.2d 248. This test would require ad hoc determinations of retroactivity for cases on direct appeal when the new standard is announced as well as for cases already final. The distinction between partial and full retroactive application would then become a matter of degree.

Defendant's argument is based on several civil cases, all of which rely on Chief Justice Marshall's opinion in United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49 (1801), wherein he stated:

"It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied . . . and where individual rights . . . are sacrificed for national purposes . . . the court must decide according to existing laws, and if it be necessary to set aside a judgment . . . which cannot be affirmed but in violation of law, the judgment must be set aside."

This principle was interpreted to mean that a court must apply whatever new standard is formulated to cases pending on appeal because the new standard is the law.

The principle was commented upon in Linkletter v. Walker, supra, wherein the Court traced the common law treatment of the concept of retroactivity. According to the Linkletter opinion, in the common law all new rules were given retroactive application at first. Later, courts began to realize that those who relied on the old standard or rule were thereby prejudiced. Thus, prospective applications began to occur. See discussion in Linkletter v. Walker, supra, 381 U.S. at 622-629, 85 S.Ct. 1731.

Cases on direct appeal at the time a new standard was formulated enjoyed the application of the new standard despite prospective application to cases final at the time the new standard was formulated. Both civil and criminal cases followed that rule. E. g., United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763 (1964). In fact, the Court in Linkletter observed "that no distinction was drawn between civil and criminal litigation . . .." 381 U.S. at 627, 85 S.Ct. at 1736. See also, James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961). In Linkletter, 381 U.S. at 627, 85 S.Ct. at 1736, the Court concluded that "under our cases it appears (1) that a change in law will be given effect while a case is on direct review."

The Linkletter Court declined to give complete retroactive effect to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (due process requires that evidence obtained in violation of defendant's Fourth Amendment rights is inadmissible at trial), but it noted that previous cases had applied the Mapp exclusionary rule to cases on direct appeal at the time Mapp was decided.² Linkletter v. Walker, supra, 381 U.S. at 622 n. 4, 85 S.Ct. 1731. E. g., Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964).

However, the Linkletter Court, after concluding its review of the common law, decided that the present rule would be different. The Court said, "thus, the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective." (Emphasis added.) 381 U.S. at 628, 85 S.Ct. at 1737. It added that even new rules which were constitutionally compelled did not require a different result. "However, we believe that the Constitution neither prohibits nor requires retrospective effect. As Justice Cardozo said, `We think the Federal Constitution has no voice upon the subject.'" 381 U.S. at 629, 85 S.Ct. at 1736.

It is not clear from that language whether the Court was implying that the present rule with regard to prospective applications of new standards applied to cases on direct review as well.

In O'Connor v. Ohio, 382 U.S. 286, 86 S.Ct. 445, 15 L.Ed.2d 337 (1965), a short per curiam opinion, the Court applied without explanation the new standard of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (prosecutor may not comment on defendant's failure to testify), to cases pending on direct appeal when Griffin was decided, while Tehan...