United States v. Summa, Crim. No. 10212

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Citation362 F. Supp. 1177
Docket NumberCrim. No. 10212,10814,10815,11275 and 11304-11306.,11271,11274
Decision Date26 December 1972
PartiesUNITED STATES of America v. Charles J. SUMMA. UNITED STATES of America v. John A. DePOLI. UNITED STATES of America v. Paul P. PALKIMAS. UNITED STATES of America v. John MENTO. UNITED STATES of America v. Samuel E. JOHNSON. UNITED STATES of America v. Salvatore LIUZZO. UNITED STATES of America v. Ralph DeNITTO, Sr. UNITED STATES of America v. Ralph DeNITTO, Jr. UNITED STATES of America v. Joseph DeNITTO.

362 F. Supp. 1177

UNITED STATES of America
v.
Charles J. SUMMA.

UNITED STATES of America
v.
John A. DePOLI.

UNITED STATES of America
v.
Paul P. PALKIMAS.

UNITED STATES of America
v.
John MENTO.

UNITED STATES of America
v.
Samuel E. JOHNSON.

UNITED STATES of America
v.
Salvatore LIUZZO.

UNITED STATES of America
v.
Ralph DeNITTO, Sr.
UNITED STATES of America
v.
Ralph DeNITTO, Jr.
UNITED STATES of America
v.
Joseph DeNITTO.

Crim. Nos. 10212, 10814, 10815, 11271, 11274, 11275 and 11304-11306.

United States District Court, D. Connecticut.

December 26, 1972.


362 F. Supp. 1178

Stewart H. Jones, U. S. Atty., Harold James Pickerstein, Asst. U. S. Atty., Bridgeport, Conn., for plaintiff.

Jacob D. Zeldes, Elaine S. Amendola, Bridgeport, Conn., for Charles J. Summa, John A. DePoli, and Paul P. Palkimas.

Joel E. Kanter, Bridgeport, Conn., for John Mento, Ralph DeNitto, Sr., Ralph DeNitto, Jr., and Joseph DeNitto.

Charles Hanken, Bridgeport, Conn., for Samuel E. Johnson and Salvatore Liuzzo.

362 F. Supp. 1179

RULING ON CLAIMS FOR REFUND OF FINES

BLUMENFELD, Chief Judge.

Prior to 1968 each of the above named petitioners pled guilty to one count of an indictment or information charging them with violations of 26 U.S.C. §§ 4411, 4412, 7203 (willful failure to register and/or pay special occupational tax). All paid fines and were sentenced to terms of imprisonment within the then established limits. All have since been released. By this action, they seek to vacate their judgments of conviction and have their fines returned to them.

The government treats the petition as presenting two distinct claims. It contends that the power of the court to vacate the criminal judgment of conviction is separate and apart from its power to order the government to reimburse the petitioners in the amount of the fines they paid to satisfy the judgments, and challenges the jurisdiction of the court to entertain the latter claim. The issues thus raised will be separately considered.

I.

Vacation of Judgment

This court's jurisdiction to entertain an application for a writ of error coram nobis, the appropriate motion for the vacation of a criminal judgment under these circumstances, is clear. United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247, 98 L.Ed. 248 (1954); 28 U.S.C. § 1651(a).

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. 716, 19 L.Ed.2d 906 (1968), the Court determined that the fifth amendment privilege against self-incrimination provided an absolute bar to prosecution for violation of these federal wagering tax statutes. In according the Marchetti-Grosso rule complete retroactivity with respect to convictions under those statutes, United States v. United States Coin & Currency, 401 U.S. 715, 723-724, 91 S.Ct. 1041, 1045, 28 L. Ed.2d 434 (1971), the Court distinguished the more limited scope of retroactivity accorded new evidentiary rules which do not undermine the accuracy of the facts found at trial1 and concluded:

"Unlike some of our earlier retroactivity decisions, we are not here concerned with the implementation of a procedural rule which does not undermine the basic accuracy of the fact-finding process at trial. Linkletter v. Walker, 381 U.S. 618 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Tehan v. Shott, 382 U.S. 406 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); Johnson v. New Jersey, 384 U.S. 719 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Stovall v. Denno, 388 U.S. 293 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Rather, Marchetti and Grosso dealt with the kind of conduct that cannot constitutionally be punished in the first instance."

The prosecution of these petitioners was barred by the fifth amendment, United States v. United States Coin & Currency, supra, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434, a fact which under the case law existing at the time they entered their guilty pleas they could not have known. As such, their pleas of guilty could not have been properly informed, or voluntary, see Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1968). Their convictions resting on this error of a most fundamental character, see United States v. Keogh, 391 F.2d 138, 148 (2d Cir. 1968), the judgments of conviction should be and hereby are vacated. United States v. Lewis, 342 F.Supp. 833 (E. D.La.1972); Angelini v. United States, 322 F.Supp. 698 (N.D.Ill.1970).

362 F. Supp. 1180

The government suggests the possibility that these petitioners, not having raised the issue at trial, waived their fifth amendment privilege, the only defense which barred their conviction. Marchetti v. United States, supra, 390 U.S. at 61, 88 S.Ct. 697, 19 L.Ed.2d 889. But waiver of a constitutional right requires ". . . an intentional 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), and the failure to raise the fifth amendment privilege in light of the case law controlling at the time these individuals pled guilty, Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955); United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953), cannot rise to the level of a waiver of a known constitutional right. Grosso v. United States, supra, 390 U.S. at 71, 88 S.Ct. 716, 19 L.Ed.2d 906.

II.

Refund of Fines

Despite the fact that consistent application of the principle established by United States v. United States Coin & Currency, supra, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434, would call for refund of the fines as an...

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18 practice notes
  • U.S. v. Holmes, No. 86-4048
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 7, 1987
    ...bond deposited with court); id. at 1233-34 (citing cases allowing the recovery of fines improperly imposed); United States v. Summa, 362 F.Supp. 1177 (D.Conn.1972) (recognizing suit to recover fines under the Tucker Act and allowing only post-judgment interest pursuant to the provisions of ......
  • Neely v. U.S., No. 76-1113
    • United States
    • U.S. Court of Appeals — Third Circuit
    • December 15, 1976
    ...Circuit has affirmed a district court decision which predicated recovery on § 1346(a)(1) "and/or" § 1346(a)(2). United States v. Summa, 362 F.Supp. 1177 (D.Conn.1972), aff'd., No. 73-1153 (2d Cir., August 14, 1973). And the Fifth Circuit, apparently not doubtful that authority to order repa......
  • U.S. v. Sams, No. 75-1023
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 4, 1975
    ...United States, 484 F.2d 630, 632 (7th Cir. 1973); DeCecco v. United States, 485 F.2d 372, 373 (1st Cir. 1973); United States v. Summa, 362 F.Supp. 1177, 1180 (D.Conn.1972), aff'd No. 73-1153 (2d Cir., filed August 14, 38 See Pasha, 484 F.2d at 633; DeCecco, 485 F.2d at 373-74; Summa, 362 F.......
  • Lee v. Thornton, No. 533
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 2, 1976
    ...88, 90-91 (3d Cir. 1972); United States v. Compagnie Generale Transatlantique, 26 F.2d 195, 197 (2d Cir. 1928); United States v. Summa,362 F.Supp. 1177, 1180 (D.Conn.1972); Jaekel v. United States, 304 F.Supp. 993, 997 The district court on remand felt compelled, because of the intervening ......
  • Request a trial to view additional results
18 cases
  • U.S. v. Holmes, No. 86-4048
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 7, 1987
    ...bond deposited with court); id. at 1233-34 (citing cases allowing the recovery of fines improperly imposed); United States v. Summa, 362 F.Supp. 1177 (D.Conn.1972) (recognizing suit to recover fines under the Tucker Act and allowing only post-judgment interest pursuant to the provisions of ......
  • Neely v. U.S., No. 76-1113
    • United States
    • U.S. Court of Appeals — Third Circuit
    • December 15, 1976
    ...Circuit has affirmed a district court decision which predicated recovery on § 1346(a)(1) "and/or" § 1346(a)(2). United States v. Summa, 362 F.Supp. 1177 (D.Conn.1972), aff'd., No. 73-1153 (2d Cir., August 14, 1973). And the Fifth Circuit, apparently not doubtful that authority to order repa......
  • U.S. v. Sams, No. 75-1023
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 4, 1975
    ...United States, 484 F.2d 630, 632 (7th Cir. 1973); DeCecco v. United States, 485 F.2d 372, 373 (1st Cir. 1973); United States v. Summa, 362 F.Supp. 1177, 1180 (D.Conn.1972), aff'd No. 73-1153 (2d Cir., filed August 14, 38 See Pasha, 484 F.2d at 633; DeCecco, 485 F.2d at 373-74; Summa, 362 F.......
  • Lee v. Thornton, No. 533
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 2, 1976
    ...88, 90-91 (3d Cir. 1972); United States v. Compagnie Generale Transatlantique, 26 F.2d 195, 197 (2d Cir. 1928); United States v. Summa,362 F.Supp. 1177, 1180 (D.Conn.1972); Jaekel v. United States, 304 F.Supp. 993, 997 The district court on remand felt compelled, because of the intervening ......
  • Request a trial to view additional results

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