United States v. Phillip Andrew Scott

CHAMBERS, BARNES, Before HAMLEY, KOELSCH, MERRILL, DUNIWAY, ELY, BROWNING, CART- HUFSTEDLER, WRIGHT, ER, KIL- Judges. TRASK, KENNY and Circuit HUFSTEDLER, Judge: Circuit Appellant appeals from his con- Scott for a violation of 21 U.S.C. § viction along Scott, codefend- with two 176a.1 brings provides, pertinent part: 1. States marihuana into the United Section 176a smuggles contrary law, “[Wlhoever, knowingly, clandes- or intent imports tinely States into the United defraud the introduces January ants, was indicted 26, 1967, charge upon L.Ed. that on October “knowingly had he and his eodefendants Before we reach the merits of Scott’s received, and facilitated concealed argument, dispose of we of mar- transportation concealment” preliminary questions: three Did they “theretofore knew ihuana that except Scott’s failure to the instruc- brought the imported into and been embodying presumption fore- the contrary juryA to law.” United States claiming in him from close here error appellant his codefendant found that (2) Did the instruction? Scott’s failure charged; guilty a as Walker were question upon to the a mo- raise same as to codefendant mistrial was declared acquittal upon tion for or motion for a Rico. raising him from new trial foreclose it ruling appeal? (3) Leary Is the on (1) the inclusion contends that: Scott unconstitutionality presump- jury of the in the instructions tion retroactive? 176a, presumption held un- from section part in constitutional general is rule that a 1532, (1969) 6, 89 S.Ct. States jury claim of error instruction compels his 57, reversal 23 L.Ed.2d waived, excepts unless the defendant to conviction; (2) un- section 176a is jury the instruction before retires to indirect is an constitutional because (Fed.Rules consider its verdict. Crim. Act, Marihuana Tax enforcement of the 30; Lopez (1963) Proc. United States seq., unconstitu- et held U.S.C. § L.Ed.2d uphold Leary. applied in tional as We 462.) purposes of the rule are to reject second his his first contention enable the district court to correct a de the constitution- contention. sustain We fect, any, if instruction and to (other pre- ality section 176a than prevent hedging defendant applied sumption) con- to We Scott. by inviting risk of an verdict adverse contentions seriatim. sider his (8A Moore, error. J. Federal Practice (2d 1968).) Leary, Court held un- 51.02 At the Ed. time of ¶[ part trial, constitutional of section Scott’s there 176a solid wall of permitting authority, presume including or to circuit court in- our own, sustaining against fer mari- the defendant knew that (E. g., illegally imported had huana been from constitutional attack. Caudillo v. proof (9th 1958) possession he been in of United States 253 F.2d Cir. marihuana, because there was no “sub- cert. denied sub Romero v. nom. (1958) possession stantial assurance that United one States 1373; likely of marihuana is more not to than Costello v. (9th illegally 1963) know that his Cir. marihuana was 324 F.2d imported.” (395 263-264, (1964) at cert. denied S..Ct. 376 U. 1553) 650.) Under such S. circumstances there exception produced is no An “rational would not connection between have proved any presumed,” facts and the fact results the trial Under court. statutory presumption pro and the tanto these circumstances were we to insist exception fails that an constitutional test of Tot v. taken to be save the acts, imprisoned shall not less than marihuana which should been in- have * * twenty years five or more than *. voiced, receives, sells, conceals, buys, or on trial for a violation of “Whenever any or in manner facilitates trans- subsection, this the defendant is shown portation, concealment, or sale of such had the or to have marihuana being imported marihuana after or possession, possession such shall in his brought in, knowing the same to have sufficient evidence to author- deemed imported brought into the Unit- ize conviction unless the defendant ex- contrary law, ed States or whoever plains possession to the his satisfaction conspires foregoing to do jury.” justice unhappy retroactive point appeal, result ministration (Sto encourage application de standards.” new we would would be that 293, 297, courts vall v. Denno to burden district fense counsel 1199.) 1967, 1970, 18 L.Ed.2d repeated then settled assaults among princi principles hope these factors is the those “Foremost out of overturned, ples purpose or out of new be later to be served will might (Desist object subject constitutional rule.” fear that failure charge incompeten counsel to a later States S,Ct. 248.) cy. 1030, 1033, conclude that failure We Scott’s given point weight except Heavy did not waive last should be appeal.2 (Kohatsu v. United States two factors —the extent of reliance 1965) consequent cert. 901 n. administra Cir. burden on the pur justice “only denied tion of when the — 1017; pose question United States [does] rule 272; (2d Lopez retroactivity clearly Fed. favor either 52(b); prospectivity.” (Desist United Rules Crim.Proc. v. United cf. (2d 251, supra, Cir. at ex rel. West v. LaVallee 394 89 S.Ct. States U.S. at 230.) 1035.) is 1964) Accordingly, rule 335 where the fashioned to correct a serious flaw reasoning parity conclude On .of we fact-finding process the and therefore neg- point by not lose his that Scott did goes integrity to accura the basic point lecting by to it motion. The raise determination, cy guilt-innocence of the no as would have been salable cast more (E. retroactive be effect will accorded. an a motion than it would have been as 2, g., Rhay (1968) McConnell v. 393 U.S. just Moreover, exception. must we 2; 32, 89 21 L.Ed.2d v. S.Ct. Roberts ques- to constitutional hesitant dismiss a (1968) 293, Russell 392 88 U.S. S.Ct. formality tion for a failure to observe a 1921, 1100; Witherspoon 20 L.Ed.2d v. that did not affect course of trial as the (1968) 510, Illinois 391 U.S. error, upon to we are seize a trivial 776; 1770, Denno Jackson v. formally preserved, convic- to overturn a (1964) 368, 1774, 84 12 S.Ct. tion. 908; Wainwright L.Ed.2d Gideon v. Upon parties direction, this court’s (1963) 335, 792, L. ques- supplemental upon filed briefs 799; (1956) Ed.2d Griffin v. Illinois decision, Leary or not whether 891; 100 L.Ed. U.S. S.Ct. invalidating part pre- of the section 176a (1965) see Linkletter v. Walker U.S. pending sumption, applies to cases then 639.) L.Ed.2d appeal.3 on direct Retroactivity has been denied or limited where rule does instances The extent to which “new” trial, go affecting to the fairness or constitutional rule criminal fact-finding process is given the flaw in the restrospeetive appli trials will be secondary importance by either of or of in measuring cation is determined (E. frequent g., against occurrence. Desist v. “(a) rule three criteria: Denno, States, supra; purpose Stovall v. by to be served the new stand- supra; ards, (b) Tehan States ex rel. extent of the reliance (1966) law Shott enforcement authorities on the old 453; Jersey (3) standards, Johnson v. New the effect on ad- Leary pending Leary except which at that time did not to the instruction Leary challenged successfully, Court. he later undecided but he briefing point when the had not been decided did raise the in his motion for a concluded, opinion Leary supra, new was first trial. shortly ease was before the handed down 395 U.S. at 89 S.Ct. 1532. argued panel. first opening heavily upon 3. Scott’s brief relied prediction counsel’s the outcome of ient, many, few, rather than a 882; Walker, persons subjected Linkletter v. su convicted have been pra; process. Williams United 159.). We conclude that the decision pre- portion The invalidated of the invalidating partially pre integral sumption part was an of the sumption fully is retroactive. fact-finding process. The use presumption integrity affected the Because submit Scott’s case was guilt, the determination of and its use theories, ted to the on alternative secondary importance neither was infrequent nor constitutionally one of which was the in in occurrence. The Govern- presumption, valid the conviction must presumption permitted ment’s use aside,4 giving in set unless the bypass proof ele- of substantive struction under the circumstances of offense, creating ments of the thus beyond this case was harmless a reason guilt “serious risk that the issue of (Harrington able doubt. v. California may reliably innocence not have de- Russell, supra, (Roberts termined.” 284; Chapman v. California 1922.) S.Ct. at 17 L. intimacy of the connection between 705.) Ed.2d finding presumption use of the and the evidence, independent pre- guilt dramatically evident a case sumption, tending prove that the mar- upon relied Government imported ihuana had been from Mexico knowledge prove alone illegal and that Scott knew about its im- illegal importation. presump- But the portation was as On the follows: eve- inextricably is tion no less bound to ning 26, 1967, of nar- October a federal finding guilt in- of when it is added to agent, Gordon, cotics met Scott's code- knowledge dependent and the evidence complete prear- fendant Walker guilt jury permitted is to decide either ranged sale marihuana to Gordon. upon presumption, upon the inde- apartment The two men went to Scott’s evidence, pendent or both. pick up the marihuana. Scott admit- Neither the fact that there has been According apartment. ted them into his validity substantial reliance on the testimony, to Gordon’s asked Walker presumption nor that retro- the fact there, Scott if the and marihuana was may spective application Leary affect way replied on Scott that was its and limiting justifies ret- numerous cases delivery anticipated he that about application. premise roactive Then, minutes. said Gordon: is, Leary that is factually part, unsupportable. It follows “Mr. Scott stated if that he could violating sec- that of those convicted of apartment rent one more presumption, 176a use ground floor, give that this would him many There are innocent of that crime. loading unloading privacy for and refusing legitimate re- is no interest cars. He stated that he had sold used guilty, proved were not lief to those who biggest lumber to one of the used lum- sought by relief is direct whether that Mexico, dealers in this ber and that integ- attack. When collateral person had told him that he could fact-finding process rity is at anything he he That stake, consequence ex- wanted. that an it is of no process inconven- of that is amination would send him a hundred a week. long California, 4. “It has been settled that when a (1931).” case is submitted to the on alterna- 75 L.Ed. unconstitutionality supra, 31-32, tive theories 395 U.S. at any requires of the theories that the con- at 1545. See, Stromberg g., viction be set aside. e. very (Compare that’s not Bollenbach v. “I then that doubt. stated 614-615, stuff, said and Mr. Scott much ” * * * Note, 350; consignment.’ 90 L.Ed. ‘That’s Error” “Harmless Constitutional had that Scott Gordon also testified 83, 89.) 20 Stan.L.Rev. sup- told Scott a source him that compels ply That kilos conclusion a reversal of Mexico for 100 a week. Scott’s conviction. We must neverthe- conversations, Shortly those after less reach Scott’s constitutional second said, left him Walker Scott Gordon and contention, question because the must be bumping, “like He some alone. heard resolved before retrial. somebody bringing something heavy up steps.” Scott section un- a side contends that 176a is Gordon into went constitutional because it violates his bedroom and saw Walker and codefen- privilege against standing by Fifth Amendment dant Rico a bed which He A self-incrimination. reasons some kilo of marihuana. were bricks none of the acts with he was few minutes later Scott entered which carrying charged receiving, opened concealing, room a trunk. Scott — Walker, transporting Rico, crime trunk Scott marihuana —is a un- imported packages less the of marihuana marihuana “con- unloaded trary law,” from law to it. importation “contrary” can any each denied com- Rico Scott Act, Tax Marihuana held unconstitu- plicity in the Rico transaction. blamed Leary, tional and that section 176a is Scott, Each de- and Scott Rico. blamed against thus an indirect enforcement nied he knew substance him of the Act. re- Marihuana Tax We packages de- was marihuana. Scott ject each of his contentions. having quoted conversations nied with Gordon. “contrary The words to law” expert An witness the Govern- “contrary existing, applica mean ment, had examined the marihuana who (Callahan ble law.” v. United States trunk, taken from the testified that 515, 517, opinion his the marihuana came 914; 76 L.Ed. v. Unit Olais-Castro opinion based on the Mexico. His ed States Cir. packaging, nature of the size the 8.) section 1158 n. the context of bricks, the unmanicured condition of and 176a, any existing the reference is law the marihuana. regulating im of the United States the including portation merchandise, knowl The evidence Scott’s edge illegal marihuana,5 importation pen over was not for violation of which a whelming. Primarily alty existing imposed. in the is Those Government’s laws proof testimony Act, rested on that Cus Gordon’s clude the Marihuana Tax the statutes, Inspection told he had a Mexi Scott had him that toms §§ U.S.C. flatly provisions can source. Scott contradicted sec and smuggling question relating thus one of or Gordon. was tion 176a itself jury introducing credibility. clandestinely reach that Did the marihuana. &-Adm.News, Cong. credibility question (See after been ef it had Code fectively 3279.) pp. Leary Nothing told it not do so? or that need in jury Covington (1969) Scott Would the have decided that United States v. lying when denied those conver or he sations, pre predecessors, if it heard the never their Marchetti had sumption? (1968) sure to those No answers States questions 889; in the record. can found States Grosso v. United (1968) We therefore cannot conclude that L. beyond 906; Haynes error was harmless a reasonable United States Ed.2d express opinion question drugs 5. We no on the other than are whether marihuana “merchandise.’ Judge (concur- KILKENNY, L. Circuit 923, suggests ring dissenting). that the assertion Ed.2d against privilege self-incrimination opinion majority I concur prosecution for would be a to a defense 176a, to the extent that 21 U.S.C. § smuggling prosecution or defense to a presumption, aside from is not con- violating general for laws. customs stitutionally Otherwise, join invalid. I Judge what been written nothing Moreover, Leary its an or Trask, joined by Judge Carter. provides Scott’s tecedents sustenance for Moreover, ground I would add another prosecuted claim cannot for that he Implicit Leary, for affirmance. concealing, as I transporting receiving, or analyze case, that ais clear cut indica- imported in vi marihuana had been that tion the result would have been dif- Nei olation of Tax the Marihuana Act. ferent it had not been for the Covington fact ther nor held that objection a valid taken in the Marihuana Act unconstitutional Tax quote opinion: trial court. I from on its Both held that face. constitutionally applied Act could not be petitioner “It is true that did not charged defendant, violating to a object on the instructions Act, timely asser who has made a alleged presumption’s basis of the un- privilege against tion of self-incrimi his constitutionality. However, he did priv nation not and who has waived the rely u/pon ground previous in his ilege. (See also Minor v. States motion a directed verdict at 284, 24 L. prosecution’s case, close 283.) Ed.2d urged again subsequent in his mo- tion a new Both motions trial. privilege purely personal. No is * * * were denied. In these cir- successfully one defense can assert as a cumstances, ques- we conclude prosecution anoth his the violation of * * *” properly tion is us. against privilege before er’s self-incrimination. p. 32, p. (Em- (Rogers 340 U. v. United States phasis supplied.) 344; S. How L.Ed. (9th 1968) ard v. United States Cir. Here, distinguished Leary, 72, 74; Murray cf. appellant objection failed to note an exception presump kind to the 697.) instruction, challenge or otherwise validity statutory presump require Section 176a not did Scott 52(b), F.R.Crim.P., per Rule tion. register pay any prosecu- or to tax. His mits, require, does Court of any way depend upon tion did not Appeals recognize plain error. A dis prosecution person successful lodged appellate cretion in the court. persons imported who marihuana States, 747, On Lee v. 343 U.S. United Act, violation of Marihuana Tax 3, 967, 749-750 n. 72 96 L.Ed. 1270 (Cf. other law. Marshall v. United Although (1952). the substantive law (9th 925.) States Cir. 409 F.2d enunciated in On Lee under has been at constitutionality His attack on years, legal principles tack in recent section 176a is therefore unfounded. onslaught. have thus far withstood the remaining re- Scott’s two contentions 768, States, Garrett v. United 382 F.2d quire no re- discussion. Both of them (9th 1967); Lopez 772 Cir. v. United late to matters that not recur will 1381, States, 427, 373 10 83 S.Ct. retrial.6 (1963). Moreover, 462 L.Ed.2d On judgment The is reversed. 52(b) Lee’s construction of Rule 6. jury by The contentions concerned claimed error “concealment” to the the inclu- seating juror initially in a excused sion of reference to the Marihuana Tax defining cause error claimed Act.

62 ap- us, the record before or eroded. United On overruled 1963), guilt evident, ex- should (6th pellant’s is we Miller, Cir. F.2d 81 v. employ- against 935, 335, our discretion 84 S.Ct. ercise 375 U.S. denied cert. 52(b). rehearing 267, denied 375 U. ment of Rule 520, 989, 84 S.Ct. States, S. F.2d Kohatsu v. United 1105, States, Worthy 409 F.2d v. United denied, (9th 1965), cert. 384 U. Cir. 1968); v. (D.C. United States Cir. 1915, 1011, 16 L.Ed.2d 1017 86 S.Ct. S. (6th 918, Cir. Dolleris, F.2d (1966); Lopez, F. v. United States 943, S. 1969), 395 U.S. denied cert. 1969), (2d Cir. and United States 2d 272 461; Alexander Ct. (2d LaVallee, F.2d 230 ex rel. West v. (5th States, 1964), majority, are Cir. cited 52(b) used 1968). should be Rule Cir. contrary. Implicit not to the in each extraordinary only situa in unusual and dogma the well established those cases is miscarriage justice prevent tions to a recognize may appellate court ju integrity preserve plain Those de error in the trial court. Herzog proceedings. v. United dicial language totally cisions are devoid 1956), (9th States, Cir. 235 F.2d indicate it would be an which would denied 352 U.S. cert. ap of our discretion to refuse to abuse States, 59; v. United Reisman ply plain error rule on a record such 1969). presented. not a case as here This is recognizes 325 U. majority the rule such as Screws v. United waived, unless 89 L.Ed. of error is S. a claim (1945), objection trial trial court failed in the where the

proper taken is Lopez elements submit the essential F.R.Crim.P. Rule court. offense on which a convic rule, (1963). Clearly, be an could rest. it would 10 L.Ed.2d 462 employ employed Rule argued, abuse of discretion not should not be it is appel atmosphere. 52(b) in that factual the reason this case for * of wall” “solid lant was faced I affirm. would sus authority other circuits in this and presumption. taining validity of the Judge, TRASK, with whom Circuit that, argument to this The answer Judge and Circuit CHAMBERS Chief fact, objection made proper Judges KOELSCH, KIL CARTER me, Leary. Logically, it seems (dissenting). join KENNY argument used “solid should wall” that, cir I am of the view under Government, rather than favor cáse, error of this cumstances many great marihuana appellant. A majority harm found here was appeal the South are now Chap beyond less a reasonable doubt. California, ern and Central Districts California, 24, 87 S. man v. Dis other Arizona and the District of (1967); Har Ct. 17 L.Ed.2d 705 doubt, pre No tricts in the Circuit. California, rington large in a sumption instruction was used (1969). 23 L.Ed.2d 284 I venture cases. number those Reporter’s An examination challenges to guess fairly educated Transcript (R.T.) has of the evidence trial instruction, in the persuaded conclusion. That me to this side. courts, minimal be on the would Hamley, Costello * Orr and is as stout the .wall I not sure that am 1963), (9th Cir. majority It have us believe. would the by majority, re- cited the marihuana case Judges Jertberg, Barnes to me that seems constitutionality pass of on the fused to Erwing Koelseh, in and presumption the record on the 176a § 1963), a cocaine F.2d 674 question, con- the them. Without before case, clearly the result forecast rather applied section, stitutionality as Leary. Er- weeks after than three Less open marihuana, Costello. left was Judges joined by Duniway, Judge wing, (R. forcefully me to na in Mexico 100 kilos a week. influenced evidence reading p. 82) the the of T. neither that the view limited discussion presumption its nor After the of marihuana bricks any prob- have had could the before been counted Rico testified he heard jurors impact minds of the on the able (R. ask, money?” Scott “Where is the upon The any their decision. effect nor 186) p. Agent T. Gordon testified that by gov- developed the plain hard facts said, money”, Scott had “Give him the and the presenting its case ernment in referring (R.T. any p. to Rico. In convincing evidence real absence of money event there was a demand for contrary the to render to the combine payment. from At time Gordon this insignificant presumption effect of placed participants of Gordon all un- in this instance. der arrest. to be deliv- The amount of marihuana Scott took the stand that and testified in which Scott ered under the scheme he trunk con- believed the or suitcase principal participant, 50 kilos was was a belonging tained old to Rico. clothes pounds. approximately There Rico testified he believed suitcase testimony anyone deal- positive Scott, belonging contained (R.T. tools large ing amount would with such a p. 197) recognized that it mari- 385). (R.T. p. where it came know huana when the were laid out. bricks expert that it came testified A narcotics (R.T. 197). p. 383). (R.T. p. It was from Mexico. Harring- The Court said paper wrapped in characteris- a butcher ton, supra, judgment “Our must be shape import. The of Mexican tic of reading based on our own of record rough quality marihuana bricks on what seems to us to have been product identified it as of itself probable impact of [the error] origin its amount as well as Mexican average jury.” the minds of an 395 U. than “kilos” rather measured light atS. S.Ct. at 1728. of “pounds”. evidence, I above believe completed to be The transaction was “probable had little or no Angeles. apartment in Los Scott’s impact” jury, on this and its recitation agent, Gordon, He the undercover met beyond and reference was harmless Walker, co-defendant, at the door reasonable I therefore af- doubt. would and took them into a back bedroom firm the conviction. agents apartment. observed his Other opinion majority I concur in the as to being door car Scott’s driven holding 176a, its that 21 absent U.S.C. § Rico, co-defendant. Rico and another presumption, constitutionally is not they unloaded Scott were observed infirm. trunk or from the back blue suitcase clearly it into the house. and carried the car 176a is a custom U.S.C. § law, dependent It trunk suitcase was the same and is not on the mari brought operation. into the Scott moments later huana tax inspection An statute agent Joseph language Gor- back bedroom where in 21 U.S.C. § purchase. compared Scott don to make the waited 176a as with 18 U.S.C. § lay helped general smuggling statute, opened out the the trunk and shows al language bricks marihuana the bed most identical was used in they 176a, co-de- could counted. Scott’s later of the two enactment § testimony legislative history, fendant Rico corroborated statutes. Congressional government’s agents many Administrative Code gov- (R.T. p. 182-184) page seq., et these News facts. Vol. Gordon, Congress agent, ernment related a the intent also shows indicating smuggling of marihuana made statement made would be Scott supply specific no it would Scott had a source of of marihua- offense “so that 64 spe- rely longer necessary sions we the retroactivi- to must determine be ty Leary. smuggling to be cial of the United States accorded laws smuggling involving prosecuting eases begin We examination with the our * *” * [page 3276].

of marihuana. premise not the Constitution does “Smuggling hence- of marihuana could dictate In Linkletter v. our action. prosecuted of this forth a violation as Walker, 1731, 618, 14 381 85 U.S. S.Ct. of and not violation subsection (1965), L.Ed.2d Justice Clark ob- 601 smug- general provisions served: the Consti- believed “[W]e (18 [page gling statute U.S.C. § requires prohibits ret- tution neither nor 3279].” rospective 629, [page S.Ct. effect.” 85 303 v. at To same effect Johnson 1737]. Witt v. United 1969), denied, Jersey, 733, 396 U.S. 86 S. cert. New 384 719 U.S. * “* * 272, 932, (1966), 230 24 L.Ed.2d 90 S.Ct. Ct. at 1781 held portion jurisprudential (1969), clearly supports this are no consti- [T]here majority opinion. prospec- to tutional obstacles rule” application. v. tive See also Desist potential conse- the serious view of 252, 89 244 at 394 U.S. majority opinion quences as to (1969). 1030 S.Ct. convicted, persons comment I heretofore retroactivity. problem on the Considered treatment of the retroac give opinion majority full retroac- would tivity problem began with Linkletter v. tivity Leary opinion, e., i. would Walker, to 618, 1731, 14 381 U.S. 85 S.Ct. ap- applied not to cases on direct (1965). 1 L.Ed.2d Linkletter 601 resulting peal to all convictions case in 1959 been convicted in state a trial which proceeded corpus. below habeas used. His attack was a collateral based Ohio, Mapp 643, v. 367 81 S.Ct. opinion Leary U.S. I should am of the 1684, (1961). 6 1081 In Link- L.Ed.2d generally application prospective letter, Mapp deci search seizure apply trial to cases those apply held to to Leary, May sion was convictions after date of commenced date 19, holding had become final before the make would 1969. Such Mapp apply only those cases to defendants whose unavailable Mapp direct specifi- review on the date previously tried and were judgment this decision. “It cally was the Febru- to Scott whose trial ended changed holding the date 14, Court that rule and ary would 1968. Since opinion of that the crucial date.” Scott, it would not be dicta. affect 639, [page page Link- 1743]. S.Ct. 85 years In the last five relief. letter himself was denied de- dozen Court handed down over a in Tehan governing retroactivity A result reached of its similar cisions Shott, U.S. ex rel. 382 major rights From criminal decisions. 406, 459, L.Ed.2d 453 15 language 86 S.Ct. and result of those deci- Maxwell, Doughty decision, (1944); v. L.Ed. 1192 to the Linkletter Prior 702, comment, granted 202, 11 L.Ed.2d had, U.S. 84 376 Court retroactivity without retroactivity (1964) (giving to Gide- criminal 650 in a number of 335, Washing Wainwright, rights Eskridge 83 S.Ct. 372 on v. U.S. decisions. v. (1963)); 792, Bd., 214, McNerlin 9 L.Ed.2d 799 ton Prison State U.S. 1933, 575, (1958) (giv Denno, v. 378 U.S. (giving Illinois, retroac- retroactivity ing 12 L.Ed.2d 1041 v. to Griffin Denno, tivity Jackson 100 L.Ed. 76 S.Ct. (1964)); Pate, (1956)); 84 S.Ct. Reck v. Crouse, 84 S.Ct. Smith v. (giving (giving 12 L.Ed.2d 1039 retroactivity Brown Mis California, Douglas retroactivity sissippi, (1936)) Ten L.Ed. 682 and Ashcraft v. (1963)). nessee,

65 (1965). Tehan been convicted the district court. Reliance was on Katz brought States, 347, habeas state court in 1961 and v. United 389 88 U.S. S.Ct. 507, corpus in the district His was (1967). court. 19 L.Ed.2d 576 Katz was v. only Griffin Cal collateral attack based on to held affect of fruits electron- ifornia, 609, 1229, 14 380 85 S.Ct. ic U.S. surveillance conducted after December 18, 1967, (1965). L.Ed.2d 106 The court held of date Katz. Desist was applied in Linkletter the new rule denied relief. only to on direct review Delaware, 213, v. Jenkins 395 U.S. 89 date of Tehan was denied re 1677, (1969), S.Ct. Griffin. 23 L.Ed.2d 253 arose lief but the case remanded for consider Supreme certiorari to the Court of passed ation of other matters not on be reapplied reasoning Delaware. It low. Jersey, Johnson v. New to retrials where Jersey, 719, Johnson v. New 384 U.S. the Miranda issue was involved and held 1772, 86 16 S.Ct. L.Ed.2d 882 apply that Miranda did not to retri- prison- was a collateral attack a state al of a defendant whose com- first trial er on a conviction final That prior 13, 1966, menced to the date June dispensed case direct review- of Miranda. Jenkins was denied relief. applying collateral distinction in attack Woods, 631, De Stefano v. 88 392 478, Escobedo, 378 S.Ct. 84 2093, (1968), S.Ct. arose 1308 1758, (1964), 12 and Miran- L.Ed.2d 977 on certiorari to the Circuit. Seventh da, 436, 1602, L.Ed. 384 U.S. 86 16 S.Ct. Louisiana, Reliance was on Duncan v. (1966), only 2d to be- 694 rules trials 145, 1444, 391 U.S. 88 20 S.Ct. L.Ed.2d ginning after of the standard- dates (1968), Illinois, 491 and Bloom U. changing decisions. himself Johnson 194, 1477, S. 20 L.Ed.2d 522 denied was relief. (1968), concerning rights to trials. 293, Denno, Stovall 388 U.S. S. The court held that the above decisions (1967), Ct. L.Ed.2d 1199 was apply retroactively did not trials be- gun also collateral attack state convic- May 20, 1968, on a before the date corpus. way tion of habeas Reliance Duncan and de- Bloom. De was Stefano Wade, was United States v. 388 U.S. nied relief. 218, 87 L.Ed.2d Halliday States, v. United 394 U.S. (1967), California, 388 U. Gilbert v. (1969), S. L.Ed.2d 1178 arose on certiorari First Circuit. (1967) . Wade and held to Gilbert were McCarthy Reliance was on only apply to cases the identifica- S,Ct. 1166, 22 12, 1967, problem arose after June (1969), L.Ed.2d 418 a non-constitutional date Stovall denied Stovall. was holding guilty case, plea, accepted that a relief. violation Fed.R.Crim.P. must Alaska, Fuller v. be set aside. court held Mc- (1968), 21 L.Ed.2d 212 on cer Carthy applied arose prospectively was Supreme tiorari 2, 1969, Court of April Alaska. from the date of Mc- Florida, Reliance was on Lee Carthy. Halliday relief. was denied all, Thus, variety cases, in a nine (1968) , holding that evidence violative involving by ha- some collateral attacks 605 of the Federal Communica § arising corpus beas on certio- and some tions Act was not admissible state rari to circuit courts or state given prospec criminal trials. Lee was courts, completely none was made retro- application tive and Fuller denied applied di- Two cases on active. were relief. appeal rect made the others com- Desist v. United pletely prospective from date of the (1969), opinion peti- In relied on. each case get arose certiorari Cir- to the Second did tioner denied relief and cuit, which had affirmed conviction changing the benefit of decision. the rule original against litigant privilege hind self-incrimi Usually in the protecting changing nation do the in of law received not relate to case the rule conviction, legacy nocent rather decision. the new judicial Tehan, litigants preserving integrity of whose Linkletter * * system page pending [382 on direct review cases were page Self-incrimination should 464]. These facts also benefited. adjunct sup- protection an the any “not to as to the was answer contention litigants truth.” This contrast posed who ascertainment of to other unfairness pre- fully case ed with retroactive Gideon pending the in our court cases retroactivity lawyer would “in senting question which denial of a of the the proceeding Leary. fect criminal the clear a with of danger convicting the of innocent.” reasoning nine var- The in the cases [page page 465], Reliance Linkletter, the Court ied. In because Twining on the v. New standard di- on had reversed convictions earlier Jersey, L. S.Ct. U.S. Mapp appeal without violations rect Finally full Ed. was substantial. considering possibility of non-retro- the “devastating” retroactivity would have a activity, was faced the court with effect on the administration of criminal retroactivity and choice full between justice literally as of thousands retroactivity. ob- Justice Clark limited “ challenge * * * open in the would be to limited the we believe that served allowing prosecutorial number of states prohibits nor re- neither Constitution prior comment to Tehan. quires retrospective effect.” In decid- ing observed, retroactivity, Clark Justice Johnson, balancing In the of factors weigh and retroactivity. must then the merits “[w]e opposed full Reliance by looking the demerits in each case past precedent disruption and the prior history question, rule in its justice administration of criminal were effect, purpose retro- and whether purpose, considerable. Chief Jus- As spective operation retard will further or tice first “the Warren observed operation.” page [381 question rule whether a constitutional of page 1738]. S.Ct. procedure criminal or does does not en- reliability fact-finding the hance the of purpose Justice held the Clark trial, process necessarily at matter Mapp stop police rule misconduct was degree.” pages 728-729, of [384 protect privacy persons’ the of page However, it not- 1778]. was homes. the the Since misconduct and gov- ed that coerced confessions were privacy occurred, invasion it by separate retroactivity erned rule al- could not now corrected. Further lowing retroactivity. parties full what involved an “extraordi- was “prisoners nary involved in Johnson procedural weapon were no that has guilty trustworthy found bearing guilt.” evidence.” pages [367 U.S. [page 731, page 637-638, page 1741], 1778]. On retroactivity, demerit side of unlimited In Stovall the court followed John- by long the Justice noted the reliance limiting son lead in Wade and Gil- law enforcement officers on the old line-ups bert decisions to aft- conducted major rule in- and the burden Wolf er the decision date. Justice Brennan’s retrying volved in freed defendants. opinion formally enumerated the three Tehan, determining retroactivity: Justice Stewart factors refused to apply (forbidding pros- “(a) purpose by rule to be served Griffin standards, (b) ecutorial on a new comment defendant’s re- the extent of re- by testify) fusal liance to cases other than law enforcement authorities on standards, (c) those on the old direct review at the time effect on justice Linkletter, decision. As in all administration of of a retro- Griffin opposed application retroactivity. standards,” factors full active of the new “First, purposes page page 1970], the basic [388 be- lie

fi7 case, the Court Applied Stovall (1969). prospective 22 L.Ed.2d 418 ad- the clear While held that essence mitting pleas (b) (c) should the voluntariness of factors thrust rule, purpose noted, outweigh for the retroactive the Court somewhat Johnson, plea (a). opinion dwells that the coerced could of factor thrust at time. Faced on the attacked uniform national reliance on the disrup- technically only, plea great deficient reliance pre-Wade standard and the having and administration factors suffi- hear claims were tion worked retroactivity. non-representation line- cient full at a to bar De counsel Stef- weighed purpose granted mis- ano trials up. While Court against prior lineup de- reliance and the effect on can taint identification justice. guilt, administration this Consider- termination found ing retroactivity danger present Fur- of Duncan Loui- cases. is not all siana, ther, noted, the Court a the does not essence held that Court the rule likely by judge produce trial a confron- was as to the situation in which the cover guilt infringe by fair determination an ac- of as trial tation is so unfair to a jury. right question process A closer cused’s due of involved to law. the De ano Court’s of determination Stef Alaska, 80, v. 393 89 S.Ct. Fuller U.S. retroactivity granted the to be Bloom v. 61, (1968), Desist v. 21 L.Ed.2d 212 granted right Bloom Illinois. 244, 89 S.Ct. 394 U.S. contempt trial in serious criminal cases. 1030, (1969), 22 search L.Ed.2d 248 were purpose prevent of One the rule was to differing and seizure cases. While contempt by judge, trial of the the same making Linkletter date of the the presided contempt when who the (Desist) the intro- search or the of date De was committed. admitted Stefano (Fuller) of the duction the evidence guilt might that of issue more be claims, point retroactivity cut-off fairly by jury. However, tried the se- Linkletter two decisions followed the rious effects on of the administration reasoning retroactivity. denying full justice strong tradition non- of Justice in Desist cited the Sto- Stewart jury contempt trials defeated full retro- vall rules “Fore- then commented: activity. among purpose most these factors is by served the new constitutional Following 1967, the Stovall decision in 249, [page page rule.” granted 89 S.Ct. retroactivity Court full * * * It noted also 1033] is to be in four situations. In each instance the heavily have relied fac- we on the integrity guilt-determination of tors of the extent process of reliance conse- Rhay, is cited. McConnell v. 393 quent burden on the administration 2, 32, U.S. 89 21 S.Ct. L.Ed.2d 2 justice only purpose when the probation (counsel at revocation-sentenc- question clearly rule did not favor ei- ing) Massachusetts, and Arsenault v. retroactivity prospectivity.” ther 5, 35, 393 89 5 U.S. S.Ct. 251, [page page 89 S.Ct. Jenkins 1035]. (counsel preliminary hearing at 1677, Delaware, 213, 395 U.S. 89 S.Ct. guilty plea) are tied line to the Gideon (1969), reapplied 23 L.Ed.2d 253 rea- of cases. also See Pickelsimer v. Wain- soning Jersey of Johnson v. to Mi- New wright, 2, 80, 375 U.S. 84 L.Ed. S.Ct. 11 randa retrials. (1963). Illinois, Witherspoon 2d 41 involving essentially 510, Two new 88 S.Ct. 20 L.Ed. Halliday matters were (1968), 2d penalty-jury 776 the death case, 89 S.Ct. found standards the “selection (1969), Woods, employed De Stefano v. necessarily standards here un- very integrity dermined ‘the . * * * (1968). Halliday process’ ”, denied full retroactivi [page 523 no. ty guilty page nonconstitutional Rule ret- 1777] and demanded full plea McCarthy standards roactivity. established in Russell, Roberts v. Finally, fac the trial of L.Ed.2d 1100 decision. con (1968), tual issues in a serious criminal of a Bruton found the admission pre by judge tempt case the same who in the confession to be a “serious flaw” contempt occurred cer fact-finding sided when process trial. “[E]ven tainly endangers integrity retroactivity may impact if the fact-finding However, process. De Ste significant, error constitutional Woods, presents fano v. issue of serious risk granted guilt may re- not have innocence only prospective application to Bloom v. liably [page determined.” Berger Finally, Illinois. page v. Califor- 1922]. nia, 21 L.Ed. completely probably impossible It (1969), retroactivity gave 2d full rationalize the decisions of the holding Page, of Barber v. subject retroactivity. A on the Court 20 L.Ed.2d 255 reading reveals close of those decisions (1968), of a witness absence essentially an hoc ad consideration does not itself allow the use his newly each articulated constitutional . preliminary hearing testimony. Oppos- right. standards been set What have ing and the counsel’s cross-examination proved transitory. Where opportunity fact finder’s to determine Court has treated itself bound through credibility personal confronta- willingness standard, it has shown a significantly in- tion were both seen as break, bend, in the if not that standard fairly determining guilt. in volved result. interests of a desirable years however, Despite uncertainty, In the five since Linkletter cer- employed variety may Court has a retroac- drawn. tain conclusions be tivity “purpose-reli- juris- (1) standards. The or There is no constitutional Denno, fixing requiring ance-effect” prudential trial of Stovall v. reason operation 18 L.Ed.2d of the date as to the balancing (1967), invites a reasoned rule of law. new judges may majority on factors dis- on well in of the cases Court agree. retroactivity While Desist retroactivi- v. has full denied retroactively ty. limited All have been (1969), gives primacy purpose involving counsel, most except to the the cases e., (i. Rhay, recently the new constitutional standard 393 U.S. McConnell integrity whether it relates 21 L.Ed.2d 2 guilt-innocence Massachusetts, determination), basic ex- Arsenault v. (1968), by one amination the Court’s decisions be- standards, willing- involving penalty-jury fore and after Desist indicates a death Illinois, retroactivity Witherspoon ness to have turn on the (1968), on past reliance or the on one on rules effect 20 L.Ed.2d 776 Russell, justice. problem, administration the Bruton Roberts v. police line-up Misidentification at a (1968), use of an and one on the certainly may convict the innocent. Sto testimony prelimi- aat absent witness’s Denno, supra, however, vall v. refused to California, Berger nary hearing, give retroactive effect to Wade and L.Ed.2d 508 prosecutor Gilbert decisions. Likewise rule (1969). purpose aof new (3) The ial comment on a refusal defendant’s always determined in fact not testify may jeopardize a well fair deter retroactivity. instances most guilt stressing mination of to a changing litigant de- only in the rule only reason for defendant’s new the benefit cision received testifying guilt is his of the crime rule. charged. given Yet the rule was Griffin retroactivity in the con- in Tehan at least obvious cases One fact retroactivity. Leary A direct review the date of the sideration of Griffin grant place retroactivity may many of full would there have been cases prosecutors on the tremendous burden administra- could have obtained justice by using tion of readily federal the circuit. convictions then availa ble evidence which not believed upon appeal All cases direct would be necessary presumption. in view of the subject re- affected and to reversal and burden the administration mand. Under Section U.S.C. § justice will be affected from the offices any prisoner custody under a convic- Attorneys through of the District resulting from trial which the District Court and to this presumption may attack the was used figures court. Exact are not available sentence and the District Court showing prisoners the number of now judgment “shall and set vacate serving time convictions in' which discharge prisoner aside and shall in 21 U.S.C. 176a was § grant him or a new trial resentence figures used. But related intelli allow may appear the sentence as correct gent They speculation. indicate appropriate.” retrials the hundreds would re be quired following holding Leary required The trial to comb court will given was to full retroactive effect if and avail record when becomes application the circuit.2 The of the con question of harm able to determine trolling existing criteria to the situation questionable If trial less a new error. persuasive in this circuit would be of a required. once availa will be Witnesses apply only rule which would may easy may to those no ble not be to locate or longer where trial commences after Evidence once be obtainable. thought pre date the decision unnecessary which was in view of the May 19, 1969. I would so decide. I sumption may disappeared. am It can have not unmindful of cir decisions other people innocent be said that if otherwise cuits which convicted, have arrived a different these considerations conclusion.3 unimportant. None of them indicates are It can said also be D2, be that of the cases are laid under 2. Table to the Annual Re- attached 70% provisions port § 176a under the tax of the Administra- of the Director . 30% equals of Title 26. of 4542 3179. tive “Criminal Office for lists 70% A count by categories made the clerk of the dis- for the Commenced” Cases trict court for District Southern F.Y.s 1965-1969. “Narcotics” is broken period of California for the groups, from down in “Marihuana Tax three 7/1/68 Act, Registrations, confirms this estimate Border and Other.” 12/31/68 following: shows the The Administrative Office advises Sec. 176a cases filed 223 Sec. cases are included within the 176a along Tax Count category eases filed of 302. Tax Act” “Marihuana 26% e., with cases under Tax Title 26 —i. figures Count for Cases. way determine, There is no but un- category doubtedly “Marihuana Tax Act” are great number of eases § 176a presumption follows: were ones — majority observes, pre- used. As the — sumption uniformly upheld had been — Leary. prior tiie courts —1968 —1969 Lopez, 3. United States v. 414 F.2d 272 (2nd retroactivity; 1969), Cir. limited Scardino, United States v. 414 F.2d 925 (5th 1969), retroactivity; Cir. limited Table D2 refers “Commenced.” States, Rowell v. United 415 F.2d 300 Judge Carter, experience his (8th 1969), retroactivity; Cir. full San court, district would estimate that con- States, (7th tos United F.2d servatively those com- 80% 1969), retroactivity; Otey Cir. limited following plea menced went to sentence (D.C.Cir. equals or trial. 4542. 80% 1969), retroactivity; limited Ramseur v. Again based the district court ex- 425 F.2d perience, April 8, 1970), retroactivity. conservative estimate would limited existing problems in this circuit there. were considered are conclusion, I not believe we do give required the benefit Scott prior justifiable decision. law en-

reliance on the potentially

forcement officials and placed on the adminis- massive burden outweigh justice considera-

tration of arguing partial full retroac- for

tions

tivity. . America,

UNITED STATES Appellee, MATALON, Appellant.

Armand

No. Docket 34388. Galvani, Kelleher, John Paul B. J. Appeals, United States Court of Morgen- Atty., Robert M. Asst. U. S. Second Circuit. thau, Atty., appellee. U. S. Argued Feb. 1970. Phylis Bamberger, April Milton Ad- Skloot Decided ler, City, appellant. York New ANDER Before WATERMAN and BARTELS, SON, Judges, Circuit Judge.* District WATERMAN, Judge: Circuit Appellant appeals judgment of from a conviction in the District United States for the District New Court Southern York, Judge Wyatt jury, and a before having having violated, and con- spired violate, 18 U.S.C. § Count one of two count indictment charged unlawfully conspiracy to re- ceive, conceal, transport illegally sell and imported merchandise, knowing it illegally imported. Count two charged receipt, conceal- unlawful ment, transportation of 200 sale illegally imported one-ounce bottles of knowing illegal Arpege perfume, * York, sitting designation. Of the Eastern District of New

Case Details

Case Name: United States v. Phillip Andrew Scott

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 6, 1970

Citation: 425 F.2d 55

Docket Number: 23119_1

Court Abbreviation: 9th Cir.