United States v. Eugene A. Nolan, 571 F.2d 528, 10th Cir. (1978)
United States v. Eugene A. Nolan, 571 F.2d 528, 10th Cir. (1978)
2d 528
Prior to his trial and conviction, the Petitioner had submitted wagering tax
forms and payments to the Internal Revenue Service in compliance with 26
U.S.C. Sections 4401, 4411 and 4412. These provisions were enacted for the
The Petitioner appealed his conviction to this court, contending inter alia that
the trial references to his possession of a Federal Wagering Tax Stamp violated
his Fifth Amendment privilege against self-incrimination. The assertion was
made in light of 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), holding that the federal statutory requirements to register
and file gambling tax returns constituted compulsory self-incrimination, and
that the assertion of the Fifth Amendment privilege would act as a complete
defense to prosecutions for the failure to comply with 26 U.S.C. Sections 4401,
4411 and 4412 which were decided by the Supreme Court while Nolan's
convictions were pending on appeal.
In Nolan v. United States, 423 F.2d 1031 (10th Cir. 1970), this court held that
the references to the Appellant's tax stamp were sufficient to entitle him to
claim the Fifth Amendment privilege, but, that the Petitioner had waived his
claim to this privilege. We found that the Appellant's case was tried in the
shadow of Marchetti and Grosso, and that both counsel were well aware of the
availability of the privilege that was then being actively litigated. We observed
that Appellant's counsel objected to the introduction into evidence of the tax
stamp and tax filings of Nolan's alleged co-conspirator, based on the pending
Marchetti and Grosso cases. It was, therefore, the opinion of this court that the
failure to assert the privilege sometime during the trial "can be plausibly
attributed to calculated trial strategy." Nolan v. United States, supra, at 1039.
Appellant has now brought this action pursuant to 28 U.S.C. Section 2255
requesting an order vacating his sentence because the Government's references
to Nolan's possession of a Federal Wagering Tax Stamp at trial violated his
Fifth Amendment privilege against self-incrimination. The District Court
denied the Petitioner Section 2255 relief without holding an evidentiary
hearing, holding that there had been no change in this circuit's view of the law
of waiver and that the Appellant's motion was improper. The District Court
concluded that should this court take a fresh look at the Petitioner's conviction,
we would find that Marchetti and Grosso should not be retroactively applied to
the case at bar.
6
On appeal Nolan contends that (1) this circuit has changed the law of waiver
and that the Appellant is entitled to the benefit of that change; (2) Marchetti and
Grosso are fully retroactive in application; and (3) an evidentiary hearing was
required on the issue of waiver.
The Appellant asserts that the case of Martinez v. United States,464 F.2d 1289
(10th Cir. 1972), represents such a change in the law of waiver and that the
"new law" should inure to his benefit. We do not agree, because the case at bar
and Martinez are not virtually identical. The issue involved in Martinez was the
validity of the defendant's convictions for violation of 26 U.S.C. Section
4744(a), a subsection of the Marihuana Tax Act. The Supreme Court, in Leary
v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), held that an
assertion of the Fifth Amendment privilege would act as a complete defense to
any prosecution for violation of 26 U.S.C. Section 4744(a). This court in the
Martinez case recognized the retroactivity of the Leary holding, even though no
Obviously the Appellant's case does not involve the Marihuana Tax Act as in
Leary and Martinez, but rather is concerned with both conspiracy and actual use
of interstate communication facilities to carry on an unlawful gambling
business. A Leary-Martinez-Marchetti-Nolan analogy cannot be properly
drawn because the Petitioner was prosecuted under different statutes, the
validity of which is not questioned, than those affected by the Marchetti and
Grosso decisions. A significant difference between Martinez and the
Appellant's case is therefore reflected in the extent of the Fifth Amendment
privilege recognized in each situation. A timely assertion of the Fifth
Amendment privilege would have provided a complete defense to a MartinezLeary type prosecution or a Marchetti prosecution for violation of 26 U.S.C.
Section 4401, et seq. But, on the other hand, an assertion of that privilege by
the Appellant would not have served as a complete defense to the 18 U.S.C.
Section 371 and 18 U.S.C. Section 1952 charges against him. The Petitioner's
privilege would, at most, have operated only to exclude testimonial references
to the tax stamp, amidst the other evidence on which the conviction was based.
Nolan v. United States, 423 F.2d 1031 at 1041-1047 (10th Cir. 1970).
10
The Appellant urges that both the Leary and Martinez decisions support the
contention that a defendant cannot waive a right unless it is a known right, and
that the law of waiver as expressed in Nolan v. United States, 423 F.2d 1031
(10th Cir. 1970), has thereby been changed. It was our opinion at the time of
Petitioner's initial appeal, and indeed it remains our opinion today, that the
actions of Appellant or his counsel amounted to a knowledgeable waiver of the
privilege against self-incrimination then being litigated in the Marchetti and
Grosso cases. Both counsel were well aware of the two pending Supreme Court
cases, as shown clearly by the objections of Appellant's counsel expressly
predicated upon the pendency before the Supreme Court of the Marchetti and
Grosso appeals, to the introduction of evidence of the stamp and tax filings of a
co-defendant. That becomes even more apparent in Nolan v. United States, 395
F.2d 285 (5th Cir. 1968), which predated the Petitioner's conviction in this
matter, and also concerned a 18 U.S.C. Section 1952 prosecution. This same
Appellant there asserted several timely objections to the introduction of his tax
filings into evidence, and had also moved to suppress them. Nolan v. United
States, 395 F.2d at 286.
11
By contrast, in Martinez v. United States, supra, the issue was the validity of
his 1956 and 1966 convictions for violation of 26 U.S.C. Section 4744(a) (a
subsection of the Marihuana Tax Act) and the retroactivity of the 1969 decision
in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57. Assertion
The holdings of Marchetti and Grosso should not be made retroactive to this
kind of a case. The retroactivity of Marchetti and Grosso was discussed by the
Supreme Court in United States v. U. S. Coin & Currency, 401 U.S. 715, 91
S.Ct. 1041, 28 L.Ed.2d 434 (1971), and Mackey v. United States, 401 U.S. 667,
91 S.Ct. 1160, 28 L.Ed.2d 404 (1971). In U. S. Coin the defendant, Angelini,
had been convicted of failing to register as a gambler and pay the related taxes
in violation of 26 U.S.C. Sections 4111 and 4112. The government initiated a
forfeiture proceedings in order to seize money which Angelini had in his
possession at the time of his arrest, and which was being used in a bookmaking
operation in violation of the Wagering Tax statutes. The Supreme Court
recognized the retroactive application of Marchetti and Grosso because the
forfeiture proceeding would impose a penalty for conduct which is
"constitutionally immune from punishment." United States v. U. S. Coin &
Currency, supra 401 U.S. at 724, 91 S.Ct. 1041.
13
In Mackey, the defendant had been convicted of income tax evasion. At trial,
the government introduced into evidence the wagering tax returns he had filed
pursuant to 26 U.S.C. Section 4401. The defendant then filed a Section 2255
motion based on the subsequent Marchetti and Grosso decisions. The Supreme
Court did not apply those cases retroactively, however, since there was no
danger that the evidence relied on for the defendant's conviction had the
potential unreliability of coerced confessions.
14
The differing results in Mackey and U. S. Coin are best explained by excerpts
from the two cases:
15
Mackey
is not asserting that the conduct for which he is being punished, evading
payment of his federal income taxes, has been held to be constitutionally immune
from punishment. In this regard, Mackey's claim differs from that raised by
respondent in Coin & Currency, also decided today, where Marchetti and Grosso do
operate to render Congress powerless to punish the conduct there at issue. Instead,
Mackey's claim is that the procedures utilized in procuring his conviction were
vitiated by the Marchetti and Grosso decisions. (Mackey v. United States, 401 U.S.
at 700-701, 91 S.Ct. at 1184.)
In Romanelli v. Commissioner of Internal Revenue, 466 F.2d 872, 877 (7th Cir.
1972), a case involving income tax deficiencies, the Seventh Circuit also
addressed itself to the holdings of U. S. Coin and Mackey :
18 United States Coin & Currency, supra, the conduct penalized (by forfeiture) was
In
the refusal to incriminate oneself by registering. Since the Court had held in
Marchetti and Grosso that that conduct could not be validly punished, the
retroactivity of those decisions was not limited. In Mackey v. United States, supra,
the conduct actually punished was evasion of taxes, and the use of the information
which Mackey had supplied did not undermine the accuracy of the fact-finding
process.
19
The Appellant's case, like Mackey and Romanelli, does not involve conduct
which is immune from punishment. Petitioner is concerned with a procedural
right which does not undermine the factfinding process. Absent conduct
constitutionally immune from punishment, retroactive application of Marchetti
and Grosso is inappropriate.
20
21
The Appellant further contends that under Mackey, the Marchetti holding must
be retroactive if a defendant's conviction was not final at the time of that
decision. Petitioner argues that since his appeal was pending at the time of the
Marchetti decision, he is entitled to the benefit of the Marchetti holding. This
23
In sum, the Appellant's Section 2255 motion was improper because the
Marchetti and Grosso decisions are not to be retroactively applied to a case like
the one now before us.
24
25
In United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 1561, 23
L.Ed.2d 94 (1969), the Court stated:
.26. . The question whether privilege has been waived also is one of law, and in most
cases there will be no factual dispute about it.
27
There is no dispute about the existence of a waiver in the matter before us now.
We have held in the Appellant's first appeal and have reemphasized in this
opinion that there was an informal waiver based on the particular circumstances
of this case.
28
L.Ed. 1461 (1938), and that counsel is not obligated to anticipate future
Supreme Court decisions. O'Connor v. Ohio,, 385 U.S. 92, 87 S.Ct. 252, 17
L.Ed.2d 189 (1966). This court does not disagree with those decisions. We
merely believe that Zerbst and O'Connor are not applicable to the case at bar.
Zerbst concerned the waiver of right to counsel by a defendant who was both
indigent and poorly educated. There was serious question as to whether the
defendant's waiver was made intelligently or competently. The Supreme Court
reversed the lower court, finding that "a waiver is ordinarily an intentional
relinquishment or abandonment of a known right or privilege." 304 U.S. at 464,
58 S.Ct. at 1023. In O'Connor the court held that a defendant is not charged
with anticipating subsequent Supreme Court decisions for the purposes of
making objections. The subsequent decision referred to, however, was handed
down after the defendant had exhausted all of his appeals.
29
In contrast to Zerbst and O'Connor, the Appellant or at least his counsel were
aware of the pending Marchetti and Grosso decisions. As we noted in the
original appeal, Petitioner's trial was conducted in the "shadow" of those cases.
The Appellant's reliance on Zerbst and O'Connor is misplaced.
30
Petitioner contends that his privilege was of such a fundamental nature that
only he could waive his rights, citing Estelle v. Williams, 425 U.S. 501, 96
S.Ct. 1691, 48 L.Ed.2d 126 (1976) for the proposition that trial-type rights may
be waived by counsel, but that personal or fundamental rights may be waived
only by a defendant. We do not believe that Williams makes such a distinction.
There the defendant appeared throughout his trial in prison attire. The court
expressly stated that this fact may have impinged on his fundamental rights to a
fair trial and presumption of innocence. The Court nevertheless found a waiver:
31
Under
our adversary system once a defendant has the assistance of counsel the vast
array of trial decisions, strategic and tactical, which must be made before and during
trial rests with the accused and his attorney. Any other approach would rewrite the
duties of trial judges and counsel in our legal system. (425 U.S. at 512, 96 S.Ct. at
1697)
32
The court in Williams did acknowledge that it was not confronted with a
relinquishment of a right of the sort involved in Johnson v. Zerbst, supra. And,
neither are we confronted with such a right. Zerbst concerned the waiver of
right to counsel. The defendant in that case was a poorly educated indigent who
was not represented by an attorney. That is plainly not the situation before us.
33
Finally, Petitioner cites Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837
(1963), to buttress his position. But, Noia is not applicable to the case at bar. In
the recent decision of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53
L.Ed.2d 594 (1977), the Supreme Court said of Noia :
34
Noting
petitioner's "grisly choice" between acceptance of his life sentence and
pursuit of an appeal which might culminate in a sentence of death, the Court
concluded there had been no deliberate bypass of the right to have the federal issues
reviewed through a state appeal. (433 U.S. at 83, 97 S.Ct. at 2504)
35
In addition to being unique Noia concerned the right to appeal and did not
involve decisions at the actual trial.
36
37
We conclude that the District Court made no error and the decision is
accordingly affirmed.