Reargued November 24, 1970.
Hastie, Chief Judge, and Biggs, Freedman,*fn* Seitz, Van Dusen, Aldisert, Adams, Gibbons and Rosenn, Circuit Judges. Gibbons, Circuit Judge, with whom Seitz, Chief Judge, concurs. Hastie, Aldisert Circuit Judge (dissenting).
There is no majority opinion in this case. Judges Van Dusen, Adams and Rosenn join in the opinion of Judge Biggs that Bannister's judgments of conviction must be reversed and the case dismissed. Judge Aldisert joins in Judge Hastie's opinion that Bannister's judgments of conviction should be affirmed. Chief Judge Seitz equates his view to Judge Gibbons' opinion that the indictment is invalid and that the judgments of conviction must be reversed.
The judgment of the court is that the judgments of conviction must be reversed and the case dismissed.
The defendant-appellant Bannister pleaded guilty to both counts of an indictment charging him with the unlawful concealment and transportation of marihuana, acquired or obtained without payment of the required transfer tax, in violation of Section 4744(a) (2), Title 26, U.S.C.*fn1 Two concurrent three year sentences were imposed on him on June 20, 1967. Bannister did not appeal but over a year later petitioned to vacate the judgments of sentence pursuant to Section 2255, Title 28, U.S.C., on the ground that his convictions and sentences violated his Fifth Amendment privilege against compulsory self-incrimination. The trial court denied relief and this appeal followed. The crimes occurred in the Western District of Pennsylvania.
In Leary v. United States, 395 U.S. 6, 27, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969), the Supreme Court by Mr. Justice Harlan held a "timely and proper" assertion of the privilege against compulsory self-incrimination to be a complete defense to prosecution under Section 4744(a) (2).
In Leary, Mr. Justice Harlan said:
"If read according to its terms, the Marihuana Tax Act compelled petitioner to expose himself to a 'real and appreciable' risk of self-incrimination, within the meaning of our decisions in Marchetti, Grosso, and Haynes.*fn2 Sections 4741-4742 required him, in the course of obtaining an order form, to identify himself not only as a transferee of marihuana but as a transferee who had not registered and paid the occupational tax under §§ 4751-4753. Section 4773 directed that this information be conveyed by the Internal Revenue Service to state and local law enforcement officials on request.
"Petitioner had ample reason to fear that transmittal to such officials of the fact that he was a recent, unregistered transferee of marihuana 'would surely prove a significant "link in a chain" of evidence tending to establish his guilt' under the state marihuana laws then in effect." (Notes omitted). Id. at 16, 89 S. Ct. at 1537.
The principal issues on this appeal are whether the assertion of the privilege against compulsory self-incrimination is a complete defense to Bannister's prosecution under § 4744(a) (2) as in Leary, and whether Leary may be applied retroactively. But several diverse and controversial views have been suggested as possibly applying to Bannister's case which, even if the Leary doctrine be applicable, would forefend a decision in his favor. We deem it desirable to dispose of these questions insofar as they can be determined before deciding the principal issues.
A. As to Plea Bargaining : It has been suggested that the colloquy set out below*fn3 between the court, the assistant district attorney, and counsel for Bannister, during his sentencing, was a kind of plea bargaining. Counsel for the parties agree in stating there was no express plea bargaining. Could there have been, however, a form of implicit plea bargaining? Note 2 cited to the text in United States v. Liguori, 430 F.2d 842, at 844 (2 Cir. 1970), cert. denied, 402 U.S. 948, 91 S. Ct. 1614, 29 L. Ed. 2d 118 (1971), states the following:
"An accused charged on several counts including concealing marihuana under 21 U.S.C. § 176a and acquiring marihuana without paying the transfer tax under 26 U.S.C. § 4744(a) may be offered a plea bargain under which he could plead guilty to the tax count alone. Since section 4744(a) carries a lower range of possible sentences, and since first offenders under section 4744(a) are not ineligible for parole and probation as are first offenders under section 176a, see 26 U.S.C. § 7237, such an accused may knowingly and expressly waive his defense of the privilege against self-incrimination to the section 4744(a) count in order to limit his conviction to this count and thereby minimize the possible severity of his punishment."
As we have stated, there were only two counts in Bannister's indictment and he pleaded guilty to both. Each involved a violation of Section 4744(a) (2) only. There was no count based on Section 176a as there was in Leary. There was no opportunity for plea bargaining in the form suggested by Liguori, or, insofar as we can see, in any other form. As we have said, Bannister was finally sentenced to imprisonment for three years on each count, the sentences to run concurrently. Cf. note 3, supra. We find that there was no plea bargaining, express or implied, and we therefore need not decide what might be the law of this case if the contrary had appeared.
B. As to the McMann Trilogy : The Government asserts that Bannister's guilty plea is a waiver of the defense of the privilege in light of the McMann trilogy: 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). We think that these cases are easily distinguishable from the instant case and we adopt the reasoning of Judge Smith in United States v. Liguori, supra, 430 F.2d at 848-849 where the identical argument was made by the Government:
"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 variety of charges which only became open to challenge due to subsequent changes in the law.
"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 section 4744(a), this does not, unlike in Richardson, et al., establish that there is a governmental interest in his punishment. In this case, it is the statutory scheme imposing punishment for failing to incriminate oneself which violates the privilege against self-incrimination, so that even if the procedures leading to the conviction were correct the punishment here, unlike in Richardson, et al., is unjustified.
"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.
"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 ...