United States v. Liguori

Decision Date17 July 1970
Docket NumberDocket 34516.,No. 670,670
Citation430 F.2d 842
PartiesUNITED STATES of America, Appellee, v. John A. LIGUORI, Appellant.
CourtU.S. Court of Appeals — Second Circuit

Daniel H. Greenberg, New York City, for appellant.

Jerome C. Ditore, Asst. U. S. Atty. (Edward R. Neaher, U. S. Atty. for the Eastern District of New York, Joseph W. Ryan, Jr., Asst. U. S. Atty., of counsel), for appellee.

Before LUMBARD, Chief Judge, and SMITH and KAUFMAN, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

On March 29, 1966, appellant Liguori and three co-defendants were indicted on six counts arising out of their acquisition, possession and concealment of 23.361 kilograms of marihuana. Count numbers three and five charged appellant with knowingly and unlawfully acquiring marihuana without paying the required transfer tax, in violation of 26 U.S.C. § 4744(a). The other counts charged conspiracy and violations of 21 U.S.C. § 176a (concealing and dealing in marihuana known to have been smuggled into the United States). He pleaded not guilty to all counts on April 14, 1966.

More than two years later, on the eve of trial, August 19, 1968, Liguori changed his plea to guilty on count number three. On October 29, 1968, Judge Manuel Real, United States District Judge for the Central District of California, sitting in the District Court for the Eastern District of New York, sentenced Liguori to five years imprisonment, to run consecutively with an unrelated sentence he was then serving. On the same day, on motion by the Assistant United States Attorney, Judge Real dismissed the charges against Liguori in counts one, two, four, five and six.

On Liguori's motion, Judge Real, February 27, 1969, reduced the sentence to three years imprisonment to run consecutively with the unrelated sentence. No appeal was taken.

On May 19, 1969 the Supreme Court decided Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), which held that a timely assertion of the privilege against self-incrimination is a complete defense to prosecution under 26 U.S.C. § 4744(a) for obtaining marihuana without having paid the transfer tax required by 26 U.S.C. § 4741(a).

Thereafter on September 2, 1969, Liguori filed a motion to the sentencing court pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence on the ground that his fifth amendment privilege against self-incrimination under the Leary decision precluded his punishment under 26 U.S.C. § 4744(a). On October 16, 1969, Judge Real denied the motion without a hearing, holding that Liguori's guilty plea, entered with the assistance of counsel and with awareness of the nature of the offense and consequences of the plea, waived any claim he might have to applicability of the Leary decision to his conviction. From this decision, Liguori appeals.1

Since we find that Leary should be given retroactive application (as to that portion dealing with the privilege against self-incrimination), that Liguori's assertion of the privilege on collateral attack was timely, and that his guilty plea did not waive his privilege against self-incrimination, we reverse the order of the district court.

The Supreme Court in Leary, following its analogous treatment of the gambling taxes 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 the registration requirement under the National Firearms Act in Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), refused to hold that 26 U.S.C. § 4744 requiring a transferee of marihuana to pay a tax is unconstitutional. Instead it ruled that a timely assertion of the privilege against self-incrimination is an absolute defense to prosecution under that section. Thus the statute continues to be viable and prosecutions under it could be successful if, for instance, a corporation acquired marihuana without paying the transfer tax, since a corporation is not entitled to assert the privilege against self-incrimination.2 See George Campbell Painting Corp. v. Reid, 392 U.S. 286, 288-289, 88 S.Ct. 1978, 20 L.Ed.2d 1094 (1968). Except for such unique situations "we believe the effect of the Supreme Court decision in Leary is to prevent enforcement of the provisions of the Marihuana Tax Act, 26 U.S.C. § 4744(a) as they are now designed because of the `substantiality of the risks of incrimination.'" United States v. Manfredonia, 391 F.2d 229, 230 (2d Cir. 1968) (discussing the effect of Marchetti and Grosso).

In the present case we must decide whether Leary should be given retroactive effect to defendants whose convictions have become final before the Supreme Court rendered that decision, May 19, 1969, and whether appellant here has waived his defense based on the privilege by pleading guilty, or has raised his defense in an untimely fashion.

I. RETROACTIVITY

This court has not yet considered whether to give retroactive effect to Leary, as applied to convictions which were final before that decision, or to the analogous decisions in Marchetti, Grosso and Haynes, supra. See Desimone v. United States, 423 F.2d 576, 577 (2d Cir. 1970) (specifically avoiding the question of the retroactivity of Haynes; Judge Bonsal, dissenting, said he would apply Haynes retroactively). Only four other circuits have addressed the problem of the retroactivity of Leary. Ramseur v. United States, 425 F.2d 413 (6 Cir. 1970) (holding Leary is mostly prospective); Santos v. United States, 417 F.2d 340 (7 Cir. 1969) (holding Leary is retroactive), vacated on other grounds, 397 U.S. 46, 90 S.Ct. 811, 25 L.Ed.2d 36 (1970); United States v. Scardino, 414 F.2d 925 (5 Cir. 1969) (assuming that Leary is not retroactive, nevertheless held that Leary applied to Scardino since his sentence had not been finally ordered); Rowell v. United States, 415 F.2d 300 (8 Cir. 1969) (holding Leary is retroactive), remanded on other grounds, 397 U.S. 662, 90 S.Ct. 1407, 25 L.Ed.2d 642 (April 27, 1970). See Miller v. United States, 311 F.Supp. 705, 709-711 (N. D.Ohio 1970) (holding Leary is retroactive); United States v. King, 307 F. Supp. 217 (S.D.Cal.1969) (dictum that Leary is retroactive); contra, Barrett v. United States, 300 F.Supp. 1060, 1062 (D.Minn.1969) (Leary is not retroactive).

On the analogous question of the retroactivity of Marchetti, Grosso and Haynes, the other circuits are divided, all but one holding in favor of retroactivity. Meadows v. United States, 420 F.2d 795 (9 Cir. 1969) (Haynes retroactive), petition for certiorari filed, 38 U.S.L.W. 3391 (February 20, 1970); United States v. Lucia, 416 F.2d 920 (5 Cir. 1969) (Marchetti retroactive); United States v. Miller, 406 F.2d 1100 (4 Cir. 1969) (Haynes retroactive); Graham v. United States, 407 F.2d 1313 (6 Cir. 1969) (Marchetti not retroactive). See Horton v. United States, 300 F.Supp. 1332 (D.Conn.1969); Stoney v. United States, 302 F.Supp. 145 (E.D.Mo.1968); Desimone v. United States, 303 F.Supp. 406 (D.Conn.1968) (alternate holding), affirmed on other grounds, 423 F.2d 576 (2d Cir. 1970), all holding that Haynes is not retroactive. Cf. Forgett v. United States, 390 U.S. 203, 88 S.Ct. 898, 19 L.Ed.2d 1033 (1968); Deckard v. United States, 381 F.2d 77 (8 Cir. 1967) (Blackmun, C.J.).

The Supreme Court has established three criteria for deciding which new constitutional rules should be given only prospective effect: "(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." Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967). The most important of the criteria is the purpose of the new constitutional rule, Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). In addition, if the new rule affects "the very integrity of the fact-finding process" then it should be given retroactive effect. See Linkletter v. Walker, 381 U.S. 618, 638-639, 85 S.Ct. 1731, 1742, 14 L.Ed. 2d 601 (1965).

Under this test, we conclude that the portion of Leary holding that the privilege against self-incrimination is a complete defense to a prosecution under section 4744(a) should be given retroactive effect. The purpose of the rule announced in Leary is to safeguard the fifth amendment privilege against self-incrimination. In the context of the Marihuana Tax Act which requires payment of the transfer tax upon acquisition of marihuana, the privilege is "the right not to be criminally liable for one's previous failure to obey a statute which required an incriminatory act." Leary v. United States, 395 U.S. 6, 28, 89 S.Ct. 1532, 1543, 23 L.Ed.2d 57 (1969). This purpose of the rule, therefore, cannot be furthered by the continued punishment of persons who were convicted prior to the Leary decision for failing to comply with the statute which required an incriminatory act. See United States v. Lucia, 416 F.2d 920, 925 (5 Cir. 1969).

Indeed, the purpose of protecting the privilege against self-incrimination, by prohibiting punishment for refusing to incriminate oneself, is served by retroactive application of Leary to terminate present punishment for a past refusal. We are not faced here with a rule whose purpose is to deter future conduct by law enforcement officials, which purpose is not furthered by retroactive application. Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); see Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969).

Nor is any justified reliance by law enforcement officials or prosecutors upset by retroactive application of Leary. This is not an instance where the conduct of...

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