ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA CRIM. No. 62-292 (TREATED AS 2255).
Van Dusen, Adams and Garth, Circuit Judges.
The two principal issues to be resolved on this appeal are:
1. Whether a district court may, on a coram nobis petition, annul a conviction under the federal wagering tax statutes when the conviction is based on a guilty plea entered prior to the time the Supreme Court held that the privilege against self incrimination furnished a complete defense against such charges; and
2. Whether the petition here presents a claim for the return of the fine imposed as a result of a conviction under the wagering tax statutes that is barred by the statute of limitations.
On February 18, 1963, Victor Carlucci pleaded guilty to two counts of willful failure to pay the special federal occupational tax imposed on wagering.*fn1 As a result, he was sentenced to pay a fine of $10,000.
In Marchetti v. United States*fn2 and Grosso v. United States,*fn3 both decided January 26, 1968, the Supreme Court held that the framework of federal wagering tax statutes "may not be employed to punish criminally those persons who have defended a failure to comply with their requirements with a proper assertion of the privilege against self-incrimination."*fn4 Overruling their decisions in Kahriger*fn5 and Lewis,*fn6 the Court declared that the practice of gambling was so permeated with criminal prohibitions that prosecution for failure to comply with the requirements of the federal gambling tax statutes would encroach upon the Fifth Amendment's protection against compulsory self-incrimination.
Subsequently, in United States v. United States Coin and Currency*fn7 the Supreme Court ruled that the Marchetti and Grosso decisions should be given retroactive effect to invalidate a forfeiture proceeding. Donald Angelini had been convicted of not registering as a gambler and not paying the federal gambling tax. The government, prior to the Court's decisions in Marchetti and Grosso commenced forfeiture proceedings with respect to $8,674 which Angelini had in his possession at the time of his arrest. The Supreme Court held that the doctrine of Marchetti and Grosso should be applied to reverse the judgment of forfeiture.
This was the background when, almost eleven years after his conviction, Carlucci, in June, 1974, filed an application for a writ of error coram nobis. Carlucci requested that the district court vacate, annul and set aside his conviction and refund the fine paid. Carlucci predicated his application on the Fifth Amendment, the All Writs Act*fn8 and section 1346(a)(2) of the Tucker Act.*fn9 The district court denied all the relief sought. It reasoned that by entering a guilty plea Carlucci had waived any defense under the Fifth Amendment, and that because there was no congressional waiver of sovereign immunity, the court had no authority to order a return of the fine.
On this appeal Carlucci contends that under Marchetti and Grosso the Fifth Amendment provides an absolute bar to his conviction, and that the principle of those cases should be applied retroactively. Carlucci further maintains that since at the time of his conviction he could not have known that the prosecution ran afoul of the Constitution, his plea of guilty was not knowing and voluntary, and therefore his conviction should be vacated.
In addition, the Tucker Act, according to Carlucci, affords the district court the power to order his fine refunded, and a coram nobis proceeding is a proper occasion upon which to present his demand for the return of the money unconstitutionally taken from him. Finally, Carlucci argues that since he could not have known prior to the decision of the Supreme Court in Coin and Currency that he possessed a cause of action for ...