United States v. Marcello, Crim. No. 19234.

• Decision Date: 31 October 1962
• Docket Number: Crim. No. 19234.
• Citation: 210 F. Supp. 892
• Parties: UNITED STATES of America v. Carlos MARCELLO.
• Court: U.S. District Court — Eastern District of Louisiana

210 F. Supp. 892

UNITED STATES of America v. Carlos MARCELLO.

Crim. No. 19234.

United States District Court E. D. Louisiana, New Orleans Division.

October 31, 1962.

Louis C. LaCour, U. S. Atty., Peter E. Duffy, Asst. U. S. Atty., New Orleans, La., Edward Molenof, John E. Sprizzo, Michael S. Fawer, Attys., Dept. of Justice, Washington, D. C., for the United States.

Jack Wasserman, Washington, D. C., Michel A. Maroun, Shreveport, La., G. Wray Gill, New Orleans, La., for Carlos Marcello.

AINSWORTH, District Judge.

This is a petition for relief in the nature of a writ of error coram nobis filed September 25, 1961, by Carlos Marcello, who seeks to set aside a judgment of conviction on his plea of guilty which was entered on October 29, 1938 (nearly 23 years before) to a charge of violating the Marihuana Tax Act of 1937, 26 U.S.C.A. § 4741 et seq. Marcello contends that on the day of the conviction on his guilty plea he was not represented by counsel and did not waive counsel, in violation of his rights under the Sixth Amendment. He was sentenced to serve a year and a day and the full term of the sentence has long since been served.

Our former opinion in this matter ordering a hearing on the petition is reported in D.C., 202 F.Supp. 694. The present petition has significance because Marcello is awaiting deportation as an undesirable alien, the deportation order having been rendered following a prolonged legal battle beginning in 1952, having been initiated under provisions of the McCarran-Walter Act, 8 U.S.C.A. § 1251(a) (11). Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107 (1955). The deportation order of the Board of Immigration Appeals dated December 8, 1961, is based on the 1938 marihuana conviction. If the conviction is set aside, the deportation order also must necessarily fall. The United States denied the allegations of the petitioner and averred that petitioner was represented by Warren O. Coleman, attorney, at the time of the plea of guilty. Hearings were held by the court without a jury on June 13, 14, 15 and 27, 1962. Final reply briefs were filed October 2, 1962.

The sequence of events pertaining to the present case follows:

On March 28, 1938, Marcello was arrested on the marihuana violation, and appeared with Fred Middleton, attorney, as his counsel before the United States Commissioner. On April 25, 1938, he was indicted by the Grand Jury on these charges for violation of the Marihuana Tax Act of 1937, the indictment specifying that he transferred 63½ ounces of marihuana to Gilmore Failor (a federal narcotics agent) on December 6, 1937, and 316½ ounces to the Government agent on December 15, 1937. J. Skelly Wright, Assistant District Attorney, signed the original indictment. On May 2, 1938, Marcello pleaded not guilty, appearing with W. O. Coleman, attorney, as his counsel. The case was called on June 6, 1938, and continued indefinitely at the request of Assistant United States Attorney J. Skelly Wright. On Saturday morning, October 29, 1938, Marcello appeared before Circuit Judge Rufus E. Foster, sitting in the district court, changed his plea of not guilty, entered a plea of guilty and was sentenced to serve a year and a day on the charges. The judgment and commitment signed by Judge Foster on the date of sentence recites that the defendant Marcello appeared in person and by counsel, without naming his attorney.¹ The minute entry of the court likewise shows that defendant Marcello appeared with counsel and named Warren O. Coleman as his attorney.² Judge Foster, Federal Narcotics Agent Failor, W. O. Coleman, attorney, and the Clerk of Court Henry J. Carter are now deceased; no stenographic transcript or recording of the proceedings was made and none is available.

The sole issue involved is whether, on October 29, 1938, when Marcello pleaded guilty, he was represented by counsel or he competently and intelligently waived counsel. If not, his conviction must be set aside in these coram nobis proceedings even though the sentence has already been served.

Coram nobis is available to petitioner as a result of the All Writs Section, 28 U.S.C.A. § 1651(a), though such writs were abolished by Rule 60(b) of the Federal Rules of Civil Procedure. This was the holding of the Supreme Court in the leading case of United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), and was the basis on which we ordered a hearing in the present case. However, this decision cautioned us that this extraordinary remedy should be allowed only under circumstances compelling such action to achieve justice where a judgment is final and defendant did not exercise but waived his right of review.

In 1938, the Supreme Court handed down its now celebrated decision in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), which held that in all criminal proceedings in federal courts the Sixth Amendment requires that an accused cannot be deprived of his life or liberty unless he has or waives the assistance of counsel. However, the court pointed out in Zerbst that a judgment cannot be lightly set aside by collateral attack and when so attacked the judgment of the court carries with it a presumption of regularity. A presumption of regularity attends the judgment of the court when a collateral attack is made upon it, McKinney v. United States, 93 U.S.App.D.C. 222, 208 F.2d 844 (1953), and a heavy burden of proof is cast upon petitioner when he attempts to overcome the presumption of regularity of the judgment of conviction where he faces a deportation as a result of the judgment. United States v. Castelli, No. 46,369, S.D.N.Y., November 3, 1961, aff'd per curiam 306 F.2d 640 (2 Cir., 1962).

In Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942), the Supreme Court said:

"If the result of the adjudicatory process is not to be set at naught, it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality."

Petitioner must overcome the presumption of regularity that judges obey the law and will protect fully the rights of persons appearing before them and that judicial proceedings have conformed with due process of law. White v. Reid, D.C., 126 F.Supp. 867 (1954). Petitioner therefore has a severe burden of proof in this case to rebut if he can the strong presumption of regularity of judicial proceedings and judgments rendered therein. Though laches is not available to the United States as a defense to this petition, nevertheless petitioner's quantum of required proof is affected and magnified by the lapse of time as well as the good faith and credibility of the moving party. United States v. Wiggins, 184 F.Supp. 673, D.D. C. (1960); Bishop v. United States, 96 U.S.App.D.C. 117, 223 F.2d 582 (1955), reversed on other grounds, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956).

To support his petition, Marcello offered his own testimony and that of three other persons said to have been in court at the time of his plea of guilty. The Government countered with its offer of the judgment and commitment, court's minute entry, the parole report prepared contemporaneously by then Assistant United States Attorney, now Judge J. Skelly Wright, and the testimony of Judge Wright and Judge Herbert W. Christenberry, Chief Judge of this court (then First Assistant United States Attorney).

Marcello testified that he was represented by Fred Middleton, attorney, at the Commissioner hearing on March 30, 1938, following his arrest on the marihuana charges. After he was indicted he appeared in court on May 2, 1938, for arraignment, accompanied by W. O. Coleman as his counsel, who entered a plea of not guilty for him. He stated that he did not see or communicate again with Attorney Coleman; that he had no funds to fight the narcotics charge and his family had no funds to assist him. He said that an uncle, Frank Tadaro, made arrangements for him to plead guilty stating that he would get less than a year's sentence; that he told his uncle that he would plead guilty, which he did on October 29, 1938. He said he was accompanied to the court by his brother-in-law Louis Badalamenti and Jerry Wood, a friend. He said that he appeared without counsel on that date before Judge Rufus E. Foster; that Assistant United States Attorney J. Skelly Wright came forward with him and some records and upon Judge Foster asking the defendant how he would plead, he entered a plea of guilty and was sentenced to a year and a day. He testified that he had no attorney and was not advised by the Judge that he could have an attorney; that he saw no reason to hire an attorney since he was going into court to plead guilty and he did not care whether he had an attorney or not, for he felt there was no useful purpose to get a lawyer when he was going to plead guilty.

Petitioner was previously convicted in 1938 on a charge of assault and robbery in a Louisiana state court and received a sentence of 9-14 years. He served a portion of the sentence and was ultimately pardoned for the offense. He awaits deportation now on account of the marihuana conviction involved in the present case. Obviously he has much to gain by the annulling of this conviction, for he would thereby avoid deportation. We have discretion to determine how much weight shall be accorded the obvious self-interest of petitioner for his motivation is undoubtedly very great. Likewise, it is for us to determine the extent his previous conviction in the state court shall be weighed against him. Although petitioner disclaims any connection with his counsel W. O. Coleman after the date of the arraignment and plea of not guilty on May 2, 1938, this lawyer's firm of Habans and Coleman was counsel for petitioner shortly thereafter in a tax case, having been...