UNITED STATES оf America, Appellee, v. John A. LIGUORI, Appellant.
No. 670, Docket 34516.
United States Court of Appeals, Second Circuit.
Argued June 3, 1970. Decided July 17, 1970.
430 F.2d 842
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:
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
Thereafter оn September 2, 1969, Liguori filed a motion to the sentencing court pursuant to
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
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 (6th Cir. 1970) (holding Leary is mostly prospective); Santos v. United States, 417 F.2d 340 (7th 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 (5th 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 (8th 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 (9th 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 (5th Cir. 1969) (Marchetti retroactive); United States v. Miller, 406 F.2d 1100 (4th Cir. 1969) (Haynes retroactive); Graham v. United States, 407 F.2d 1313 (6th 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 (8th Cir. 1967) (Blackmun, C.J.).
The Supreme Court has established three criteria for deciding which new constitutiоnal 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 retroаctive effect. See Linkletter v. Walker, 381 U.S. 618, 638-639, 85 S.Ct. 1731, 1742, 14 L.Ed.2d 601 (1965).
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 pre-trial proceedings and investigations or prosecutorial trial tactics would have beеn different had the Leary rule been in effect at the time. See, e.g., Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966). Had the Leary rule been in effect, there could have been no prosecution of Liguori for the crime with which he was charged. Thus the government could not have obtained the conviction of Liguori by modifying its pre-trial activities, the evidence it presented at trial, or its summation, or by requesting a different charge to the jury. Thus, although the government did rely on its ability to obtain a valid conviction under section 4744(a), it did not rely to its detriment. Even if the Leary rule had been known at the time, the government would have been in no better position to convict Liguori than it is now; a timely assertion of the privilege would have prevented any prosecution.
Similarly, the retroactive application of Leary will not have the adverse effect on the administration of justice which was avoided in such cases as Johnson v. New Jersey and Linkletter v. Walker, supra. Since retroactive application of Leary will completely bar any further prosecution, the government will not be burdened with the dilemma of either retrying large numbers of guilty persons with aged or dissipated evidence or permitting the release of such persons when there is a governmental interest in their continued punishment. Meadows v. United States, 420 F.2d 795, 799 (9 Cir. 1969), petition for certiorari filed, 38 U.S.L.W. 3391 (February 20, 1970); see Miller v. United States, 311 F.Supp. 705, 710 (N.D.Ohio 1970). The rule announced in Leary vitiates any governmental interest in the continued punishment of persons in violation of their fifth amendment privilege against self-incrimination. See United States v. Lucia, 416 F.2d 920, 926 (5 Cir. 1969); United States v. Miller, 406 F.2d 1100, 1104 (4 Cir. 1969).
To be sure, the rule announced in Leary does not go to the very integrity of the fact-finding process, Linkletter v. Walker, supra, 381 U.S. at 638-639, 85 S.Ct. at 1742, but it affects a decision
We are not, therefore, convinced by the reasoning in Graham v. United States, 407 F.2d 1313 (6 Cir. 1969). We decline to follow Ramseur v. United States, 425 F.2d 413 (6 Cir. 1970), and we hold that the portion of Leary dealing with the privilege against self-incrimination should be given retroaсtive effect. Compare, United States v. Jenkins, 427 F.2d 149 (2d Cir. 1970) (presumed that invalidity of presumption of importation is retroactive); United States v. Scott, 425 F.2d 55 (9 Cir. 1970) (en banc) (portion of Leary dealing with the presumption of importation is retroactive); accord, Rivas v. United States, 315 F.Supp. 972 (S.D.N.Y. March 19, 1970), appeal docketed, Docket No. 34834 (2d Cir. May 25, 1970). Cf. United States v. Sorenson, 308 F.Supp. 1268 (E.D.N.Y. January 27, 1970).
II. TIMELINESS AND WAIVER
The Court in Leary, as in Marchetti, Grosso and Haynes, held that in order for the privilege to be a complete defense to prosecution under section 4744(a) it must be asserted in a timely fashion and it must not be waived. 395 U.S. at 27, 89 S.Ct. 1532; United States v. Covington, 395 U.S. 57, 59, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969). We consider first whether Liguori‘s assertion of the privilege was timely.
At the time Liguori pleaded guilty, August 19, 1968, only two courts had considered whether Marchetti, Grosso and Haynes (decided on January 29, 1968) would permit prosecutions under section 4744(a) over an assertion of the privilege against self-incrimination. Leary v. United States, 392 F.2d 220 (5th Cir. 1968) (en banc) (privilege is no defense), cert. granted, June 10, 1968, 392 U.S. 903, 88 S.Ct. 2058, 20 L.Ed.2d 1362; United States v. Covington, 282 F.Supp. 886 (S.D. Ohio March 27, 1968) (privilege is a defense). Under these circumstances Liguori cannot be faulted for failing to anticipate the action of the Supreme Court. Otey v. United States, 135 U.S. App.D.C. 142, 417 F.2d 559, 561 (1969); Rowell v. United States, 415 F.2d 300 (8 Cir. 1969), remanded on other grounds, 397 U.S. 662, 90 S.Ct. 1407, 25 L.Ed.2d 642 (April 27, 1970); Santos v. United States, 417 F.2d 340, 345 (7 Cir. 1969), vacated on other grounds, 397 U.S. 46, 90 S.Ct. 811, 25 L.Ed.2d 36 (1970); see United States v. Lopez, 414 F.2d 272, 273 (2d Cir. 1969) (per curiam); Meadows v. United States, supra; United States v. Lucia, supra; United States v. Miller, supra; but see Sepulveda v. United States, 415 F.2d 321 (10 Cir. 1969); United States v. Carlisle, 303 F.Supp. 627 (W.D.Okl.1969); cf. Stoney v. United States, 302 F.Supp. 145 (E.D.Mo.1968).
In Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968) petitioner failed to assert at trial or before the Supreme Court the privilege as a defense to charges based on his failure to pay the occupational tax. Since the case law at the time had rejected such a defense, the Supreme Court held that his conviction on these charges should be reversed despite his total failure to assert the privilege. In similar circumstances, we have held that a plea of the privilege for the first time on appeal is timely when the trial took place prior to the Supreme Court‘s decision. United States v. Lopez, 414 F.2d 272, 273 (2d Cir. 1969) (per curiam); United States v. Manfredonia, 391 F.2d 229 (2d Cir. 1968) (per curiam); accord, United States v. Whitehead, 424 F.2d 446, 448 (6 Cir. 1970) (en banc); Otey v. United States, 135 U.S.App.D.C. 142, 417 F.2d 559, 561 (1969); Becton v. United States, 412 F.2d 1005, 1007 (8 Cir. 1969) (Blackmun, C. J.); Shoffeitt v. United States, 403 F.2d 991 (5 Cir. 1968); Drennon v. United States, 393 F.2d 342 (8 Cir. 1968). In Leary itself, petitioner first asserted the privilege after the completion of the trial on motion
It would seem that the Supreme Court‘s requirement that the privilege be timely asserted was primarily designed to insure that in future cases the accused will assert his defense of the privilege before time and resources are wasted on a trial. Wе cannot conclude that the purpose of the timeliness requirement would be served by holding that Liguori‘s assertion of the privilege was untimely, when at the time of his conviction, the Leary defense had not been established by the Supreme Court. Ramseur v. United States, 425 F.2d 413, at 415 (6 Cir. April 8, 1970); Miller v. United States, 311 F.Supp. 705, 708-709 (N.D.Ohio 1970). Liguori‘s motion for relief under section 2255 (on September 2, 1969) was filed within four months of the Supreme Court‘s decision in Leary.
Finally we must consider whether Liguori waived his privilege against self-incrimination by pleading guilty. The court below so held. Other courts considering the question, under Leary, or Marchetti, Grosso, or Haynes, supra, for the most part have found that a guilty plea is not a waiver of thе privilege in cases of this nature. Meadows v. United States, supra, 420 F.2d at 797; United States v. Lucia, supra, 416 F.2d at 923; United States v. Miller, supra, 406 F.2d at 1105; Desimone v. United States, 423 F.2d 576, at 583 (2d Cir. May 1, 1970) (dissenting opinion); Miller v. United States, 311 F.Supp. 705, 709 (N.D.Ohio 1970); see United States v. Scardino, 414 F.2d 925, 927 (5 Cir. 1969) (dictum); United States v. King, 307 F. Supp. 217, 218 (S.D.Cal.1969) (dictum); contra, Eby v. United States, 415 F.2d 319 (10 Cir. 1969) (per curiam).
By pleading guilty here, Liguori admitted that he had failed to comply with the transfer tax provisions of
Nor is this situation controlled by the recent decisions of the Supreme Court in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In those cases the Court held that a guilty plea is not involuntary if it is based on competent contemporary advice of counsel as to admissibility of a confession or as to the validity of a possible death sentence after conviction by a jury, even if subsequent Supreme Court decisions render the confession inadmissible or the possible death sentence invalid.
The Court in those cases relied heavily on the fact that when a petitioner pleaded guilty, he admitted in open court that he committed the charged crime. Moreover the Court felt that it would be too difficult to determine years later the magnitude of the effect of petitioner‘s fear of his confession or the death sentence on the petitioner‘s original decision to plead guilty. And the Court was apparently concerned with the burden on the states of having to permit reopening of countless guilty pleas to a variеty of
The instant case does not fall within those concerns. First of all, we are not considering here as in McMann v. Richardson, supra, et al., whether Liguori‘s plea was voluntary. Liguori has not claimed that his plea was involuntary. Rather, we consider here whether Liguori when he pleaded guilty intended to waive his defense under Leary even before that decision was rendered. We think that he did not. See United States v. Lucia, 416 F.2d 920, 923 (5 Cir. 1969).
Second, although Liguori admitted in open court that he violated
Third, there is no difficulty now in determining whether Liguori would have pleaded guilty had the Leary rule been in effect at the time. Since Leary and the privilege would have provided a complete defense to prosecution, we are not faced with an accused‘s decision to plead guilty based on difficult judgments as to the strength of the government‘s case and as to the possibility of leniency. McMann v. Richardson, supra, 90 S.Ct. at 1448. In this case Liguori certainly would not have pleaded guilty had he known of his right to assert the privilege as a complete defense.3
Finally, by permitting Liguori‘s defense founded on his privilege against self-incrimination, despite his plea of guilty, we do not jeopardize valid convictions on a wide variety of state and federal charges as was feared in McMann v. Richardson, supra, et al. Here we only permit the defense of privilege to be asserted by prisoners who pleaded guilty to a single federal offense, when the federal government has no valid interest in the continued punishment of those prisoners for that offense. See United States v. Miller, 406 F.2d 1100, 1104 (4 Cir. 1969).
III. DISPOSITION
Since we have found that Liguori has timely asserted his privilege against self-incrimination and that he did not waive his privilege by pleading guilty prior to the Leary decision, we reverse the decision of the court below and remand with dirеctions to vacate the judgment of conviction.4 There is no ques-
Reversed and remanded. Mandate may issue forthwith.
LUMBARD, Chief Judge (concurring):
Although I concur in the majority opinion and agree with the result reached, see United States v. Lopez, 414 F.2d 272 (2d Cir. 1969), the troublesome nature of this case prompts me to add several comments.
Liguori, together with Henry Rosa, Luis Custodio and Eli Samuel Gonzalez, was charged in a six count indictment with possession, sale, and distribution of marihuana and with conspiracy to do the same.1 Liguori pleaded guilty to count three charging him with failure to pay the transfer tax on 52 lbs. of marihuana, in violation of
Relying on Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), Liguori now attempts to have his conviction after a guilty plea reversed. I would have little hesitation in arriving at the result we reach today if Leary, supra, had simply declared
There can be no doubt that a bargain was reached in this case and that Liguori, by pleading to count three and securing the dismissal of all the other counts, benefited grеatly from the arrangement. That he can now assert the benefit of his bargain and avoid entirely the reciprocal burden was certainly not within the contemplation of the court or the parties.
In such a situation there appears to be every reason to permit the government either to re-indict Liguori on the other counts, or to move in the district court to vacate the dismissal of the other counts. If the government elects to continue with the prosecution of Liguori it must do sо promptly, as the acts charged occurred more than four years ago and the running of the statute of limitations will soon become a bar to any further prosecution. In the event the government does continue the prosecution, I do not think that the defense of double jeopardy will be a bar. See United States v. Chase, 372 F.2d 453 (4th Cir. 1967); Robinson v. United States, 284 F.2d 775 (5th Cir. 1960); Hensley v. United States, 82 U.S.App.D.C. 14, 160 F.2d 257, cert. denied, 331 U.S. 817, 67 S.Ct. 1305, 91 L.Ed. 1835 (1947).
The majority assumes in footnote 3 that the charges against Liguori cannot be proved because the charges against a co-defendant were dismissed with the consent of the government after Leary, supra. It does not follow, however, that the evidence against Liguori is insufficient to make out a case on one or more of the five counts which were dismissed. Based on the overt acts alleged in the conspiracy count of the indictment, Liguori may well have been the ringleader of the entire operation. He is alleged to have made two different telephone calls to buyers and on another occasion he allegedly met with two buyers to negotiate the terms of delivery and sale of the marihuana. None of the other defendants is alleged to have made any telephone calls and their participation in the scheme seems to have been less central than Liguori‘s. These factors would seem to be a strong indication that Liguori had actual knowledge of the source of the marihuana he was distributing. In any event, the mere fact that the charges were dropped against a co-defendant is in no way indicative of thе quantum of proof that may exist against Liguori.
The purpose of a guilty plea is to resolve and settle issues with finality, and only in exceptional circumstances will the disposition after a guilty plea be subject to review on appeal. A defendant is still bound by his guilty plea and conviction even though he might have pleaded differently had later decided cases then been the law. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (May 4, 1970). In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (May 4, 1970) the Court further indicated that
“[A]bsent misrepresentation or other impermissible conduct by state agents, cf. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), a voluntary plea of guilty intelligеntly made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.” 90 S.Ct. at 1473.
The Court continued, saying
“We find no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant had thought. * * *” 90 S.Ct. at 1474.