Williams v. United States, 4-68-Civ-247.

CourtUnited States District Courts. 8th Circuit. United States District Court of Minnesota
Writing for the CourtDEVITT
Citation291 F. Supp. 376
PartiesFelix WILLIAMS, Petitioner, v. UNITED STATES of America, Respondent.
Docket NumberNo. 4-68-Civ-247.,4-68-Civ-247.
Decision Date25 October 1968

291 F. Supp. 376

Felix WILLIAMS, Petitioner,
UNITED STATES of America, Respondent.

No. 4-68-Civ-247.

United States District Court D. Minnesota, Fourth Division.

October 25, 1968.

291 F. Supp. 377

Felix Williams, pro se.

Joseph T. Walbran, Asst. U. S. Atty., Minneapolis, Minn., for respondent.


DEVITT, Chief Judge.

Petitioner Felix Williams, a federal prisoner, moves, under Title 28 U.S.C.A. § 2255, to vacate the 35-year sentence imposed upon him in 1957.

He was convicted on twelve counts of violations of various federal narcotic laws. The essential facts, and the affirmance of that conviction, are reported in Williams v. United States, 260 F.2d 125 (8th Cir. 1958). Certiorari was denied. 359 U.S. 918, 79 S.Ct. 596, 3 L.Ed. 2d 579 (1959).

In 1959 petitioner sought post-conviction relief under the title of a "writ of nisi feceris without unnecessary cunctation and in support of error coram nobis to vacate and set aside an erroneous conviction." That quest was construed as a petition for relief under § 2255; relief was denied on November 10, 1959. Petitioner's attempt to appeal the denial in forma pauperis was denied by this court; the denial was upheld by the Court of Appeals for the Eighth Circuit.

291 F. Supp. 378

In 1960, petitioner again sought relief under § 2255, accompanying his motion with a widely-ranging ninety-three page memorandum. This petition was also denied as lacking merit and good faith.

The present petition is therefore Felix Williams's third. This court noted seven years ago, in connection with this case, that somewhere litigation must end. However, because the petitioner's persistence, which is assumed to be in good faith, this time has evolved some fresh issues, we have accorded his petition full consideration.

The issues raised in the present petition may be summarized as follows:

1) That 26 U.S.C.A. § 4742, requiring a written order form for the transference of marijuana, and 26 U.S.C.A. § 4744, requiring payment of a transfer tax on marijuana, violate the privilege against self-incrimination guaranteed by the Fifth Amendment.
2) That the statutory presumptions of 21 U.S.C.A. §§ 174 and 176a, and 26 U.S.C.A. §§ 4704(a) and 4744(a), deprive a defendant of due process of law and a fair and impartial jury as required by the Fifth and Sixth Amendments.
3) That Counts One through Eight and Ten of the indictment fail to state a criminal offense against the United States.
4) That petitioner was deprived of his right to effective counsel at all stages of the proceedings against him in violation of the Sixth Amendment.
5) That during interrogation by federal officers, the lack of warning given as to his rights was a deprivation of assistance of counsel, due process, and the privilege against self-incrimination in violation of the Fifth and Sixth Amendments.

These contentions will be considered seriatim.

Petitioner was convicted on four counts of having transferred marijuana without a written order as required by 26 U.S.C.A. § 4742(a), and on five counts of failing to pay the transfer tax in violation of 26 U.S.C.A. § 4744(a). It is apparently petitioner's contention that compliance with these sections would have been in effect an announcement of his illegal possession and intention to transfer marijuana, and that therefore the statutes violate his privilege against self-incrimination.

Petitioner rests his argument on three recent United States Supreme Court cases dealing with wagering taxes and registration of firearms. In Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), it was held that §§ 4411 and 4412 of Title 26 U.S. C.A. which require gamblers to register and to pay an occupational tax,

"may not be employed to punish criminally those persons who have defended a failure to comply with their requirements with a proper assertion of the privilege against self-incrimination." 88 S.Ct. at 699.

In so ruling, the Court effectively overruled the cases of Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955), and United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953).

In Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), the reasoning of Marchetti, supra, was repeated to prevent conviction for failure to pay an excise and an occupational tax on wagering. See 26 U.S.C.A. §§ 4401, 4411. The third case, Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), decided that,

"a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under § 5841 Title 26 U.S.C.A. or for possession of an unregistered firearm under § 5851 Title 26 U.S.C.A.." 88 S.Ct. at 732.

Undoubtedly, the statutes under which petitioner was convicted, like those considered in their triad of cases cited above, require information which in most cases would substantially increase the likelihood

291 F. Supp. 379
of criminal prosecution. See discussion at 88 S.Ct. 702, and at 88 S.Ct. 730. Such a similarity is sufficient to cast doubt on the continued efficacy of prosecutions under §§ 4742(a) and 4744 (a). In fact, some recent cases have recognized the probable effect of Marchetti, Grosso, and Haynes, on the vitality of the statutes here being considered. See, e. g., United States v. Covington, 282 F.Supp 886 (S.D.Ohio 1968); United States v. Vial, 282 F.Supp. 472 (D. Mass.1968). The current docket of the United States Supreme Court includes a consideration of this very question. Leary v. United States, 383 F.2d 851 (5th Cir. 1967), cert. granted 392 U.S. 903, 88 S.Ct. 2058, 20 L.Ed.2d 1362; 37 LW 3009 (1968)

Nevertheless, attention to the doctrine of retroactive effect of new constitutional standards compels the conclusion that, regardless of the result in the Leary case, petitioner is entitled to no relief on this issue.

Petitioner was convicted in 1957. By 1959 he had exhausted the regular channels of appellate review. At that time the constitutionality of the statutes under which he was convicted, and the impotency of the privilege against self-incrimination as a full defense to prosecutions thereunder, were solidly established. Until this moment, the law has not changed. Browning v. United States, 366 F.2d 420 (9th Cir. 1966); Rule v. United States, 362 F.2d 215 (5th Cir. 1966) cert. denied 385 U.S. 1018, 87 S.Ct. 744, 17 L.Ed.2d 554 (1967); Haynes v. United States, 339 F.2d 30 (5th Cir. 1964) cert. denied 380 U.S. 924, 85 S.Ct. 926, 13 L.Ed.2d 809 (1965); Pickett v. United States, 223 F.Supp. 695 (S.D.Cal. 1963), cert. denied 379 U.S. 939, 85 S.Ct. 346, 13 L.Ed.2d 349 (1964); Haili v. United States, 212 F.Supp. 656 (D.Haw. 1962). These cases invoked the teachings of, and thus girded the authority of, United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953), and Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955).

Indeed, it should be noted that until this latest petition, the Fifth Amendment privilege against self-incrimination had not been asserted by petitioner. And it is safe to say that had it been asserted, before or during trial, on appeal, or on his two preceding § 2255 motions, it would have been found to have been ineffective.

Assuming, therefore, arguendo, that Marchetti, Grosso, and Haynes apply to the narcotic control laws here pertinent, the question arises whether they would apply retroactively to invalidate a conviction of eleven years' vintage. We find that the Marchetti triad should not be applied retroactively; therefore the question of applicability becomes academic, and beyond the scope of this court's proper adjudicatory functions.

The principles governing the determination of when a constitutional standard should be given retrospective effect have been lately reclarified. In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), it was held that the rule of Mapp v. Ohio,1 that evidence obtained in an illegal search or seizure must be excluded in state trials, was not to be applied retroactively. Subsequently, Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), held that the rules of Escobedo2 and Miranda3 requiring warnings of constitutional rights in significant stages of pretrial interrogation were likewise to be applied to only future convictions. See also, United States ex rel. Laughlin v. Russell, 282 F.Supp. 106 (E.D.Pa. 1968). A similar limit was appended to the United States v. Wade4 and Gilbert v. State of California5 rules requiring

291 F. Supp. 380
counsel in pre-trial identifications of defendants by witnesses. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)

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