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UNITED STATES v. RUSSO

May 15, 1973

United States of America
v.
Ernest Russo, Defendant



The opinion of the court was delivered by: COHEN

 Defendant, Ernest Russo, seeks a vacation of the sentence imposed upon him April 19, 1963 on an indictment returned November 7, 1962 charging six offenses of the federal statutory scheme for taxing illegal wagers, in violation of 26 U.S.C. §§ 7203 and 7262. These six counts were predicated on Russo's failure to pay a special gambling occupational tax required under 26 U.S.C. §§ 4401, 4411 and upon his failure to register with and supply information to the District Director of the Internal Revenue Service, as required by 26 U.S.C. § 4412(a).

 Initially, on November 16, 1962, Russo pleaded not guilty to the indictment, but on March 1, 1963 he withdrew his previous plea and entered a plea of guilty to all six counts thereof. On April 19, 1963 the defendant was fined $1,000.00, the payment of which was suspended and he was placed on probation for a period of five years without supervision. This probationary period expired prior to the filing of this motion.

 The motion is in the nature of a writ of error coram nobis. In support thereof, Russo relies on Marchetti v. United States, 390 U.S. 39, 19 L. Ed. 2d 889, 88 S. Ct. 697 (1968) and Grosso v. United States, 390 U.S. 62, 19 L. Ed. 2d 906, 88 S. Ct. 709 (1968) which held that the assertion by a defendant of the privilege against self-incrimination under the fifth amendment is a bar to prosecution for violation of the federal laws taxing illegal wagers. He claims that these cases should have retroactive application; that although he has completed his period of probation he is still suffering civil disabilities as a result of his conviction, e.g., an inability to obtain employment; and is entitled to relief.

 Jurisdiction

 Title 28 U.S.C. § 1651(a) empowers federal courts to issue "all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." In United States v. Morgan, 346 U.S. 502, 511, 98 L. Ed. 248, 74 S. Ct. 247 (1954), the Court concluded that this "all-writs" section empowers a district court to take cognizance of a motion in the nature of coram nobis. The Court further noted that:

 
[such] a motion is a step in the criminal case and not, like habeas corpus where relief is sought in a separate case and record, the beginning of a separate civil proceeding. Id. at 505, n. 4.

 Thus, the hearing of such a motion is "in aid" of the already existing criminal jurisdiction of this court. *fn1"

 Additionally, in United States v. National Dairy Products Corp., 313 F. Supp. 534, 537 (W.D. Mo. 1970), the court stated:

 
We view Morgan's recognition of coram nobis jurisdiction as simply a determination that Section 1651(a) is broad enough to provide commensurate post-conviction jurisdiction for federal prisoners who fall outside the "custody" requirement of Section 2255.

 Finally, the court concluded that " coram nobis is presently available to test the validity of sentences completely served . . ." Id.

 The only remaining jurisdictional question is whether the error complained of by the defendant is of the nature normally within the scope of coram nobis relief. In United States v. Mayer, 235 U.S. 55, 69, 59 L. Ed. 129, 35 S. Ct. 16 (1914), the Court stated that coram nobis was designed to correct situations

 
where the errors were of the most fundamental character, that is, such as rendered the proceeding itself irregular and invalid.

 The inability of defendant to exercise his fifth amendment privilege against self-incrimination is unquestionably an error that directly affects the validity of the prior proceeding. Meadows v. United States, 420 F.2d 795, 799 (9th Cir. 1969). If defendant had been able to invoke the fifth amendment privilege, this conviction would have been impossible since the Supreme Court has held that invocation of the fifth amendment privilege is a bar to prosecutions for violations of the federal wagering tax scheme. This is precisely the area within which coram nobis was designed to operate. See, e.g., Johnson v. United States, 344 F.2d 401, 411 ...


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