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United States v. Sullo

United States District Court, D. Massachusetts

January 31, 2018

UNITED STATES OF AMERICA
v.
GERARD S. SULLO, Defendant.

          MEMORANDUM & ORDER

          INDIRA TALWANI UNITED STATES DISTRICT JUDGE.

         Before the court is Gerard S. Sullo's Petition for Writ of Error Coram Nobis [#2]. Sullo seeks to vacate his 1970 conviction for not paying tax on the transfer of marijuana. He now claims that he received ineffective assistance of counsel in entering a guilty plea, because his attorney failed to advise him that a timely and proper assertion of his Fifth Amendment privilege against self-incrimination provided a complete defense to the crime charged. For the following reasons, the court DENIES Sullo's petition.

         I. Background

         To understand the basis for Sullo's petition, it is necessary to explore the statutory scheme of the Marihuana Tax Act, 26 U.S.C. § 4741, et seq. (repealed 1970); the original records in this case, United States v. Gerard S. Sullo, 70-cr-00154, as well as those in a related 1969 case, United States v. Gerard S. Sullo, Cr. No. 69-62-F; and case law addressing the constitutionality of the Marihuana Tax Act at the time Sullo pleaded guilty.

         A. The Marihuana Tax Act

         Section 4742(a) of the Marihuana Tax Act prohibited transfers of marihuana “except in pursuance of a written order of the person to whom such marihuana is transferred, on a form to be issued in blank for that purpose by the [Treasury] Secretary or his delegate.” Internal Revenue Service (“IRS”) regulations required that any transferee provide the following information on the written order form: (1) the name and address of the transferor and transferee; (2) the registration numbers, if applicable, of the transferor and transferee; and (3) the quantity of marihuana transferred. See Leary v. United States, 395 U.S. 6, 15 (1969). These forms were to be open to inspection by state and local officials “charged with the enforcement of any law or municipal ordinance regulating the production of marihuana or regulating the sale, prescribing, dispensing, dealing in, or distribution of narcotic drugs or marihuana.” 26 U.S.C. §§ 4742(d), 4773.

         Section 4741(a) of the Act imposed a tax “upon all transfers of marihuana which are required by section 4742 to be carried out in pursuance of written order forms.” Transfers to certain registered transferees, such as physicians and researchers, were taxed at $1 per ounce, while transfers to non-registered transferees were taxed at $100 per ounce. These taxes were to be paid “by the transferee at the time of securing each order form, ” although a transferor was liable to pay the tax in the event that the transferee failed to do so. Id. § 4741(b).

         Section 4744(a) made it unlawful “for any person who is a transferee required to pay the transfer tax imposed by section 4741(a) . . . (1) to acquire or otherwise obtain any marihuana without having paid such tax, or (2) to transport or conceal, or in any manner facilitate the transportation or concealment of, any marihuana” obtained without having paid the § 4741(a) transfer tax. Proof that a transferee possessed marihuana but failed to produce the order form required by § 4742 was considered “presumptive evidence of guilt under [section 4744(a)] and of liability for the tax imposed by section 4741(a).” Id. § 4744(a).

         Penalties under the Act differed under the two sections, perhaps in recognition of the different roles of transferee and transferor. A conviction of the transferee under § 4744(a) carried a penalty of imprisonment of “not less than 2 or more than 10 years.” Id. § 7237(a). A conviction of the transferor under § 4742(a), however, carried a penalty of imprisonment of “not less than 5 or more than 20 years.” Id. § 7237(b). While a court could impose a suspended prison sentence or probation for a § 4744(a) conviction, the statute prohibited imposition of a suspended sentence or probation for a § 4742(a) conviction. Id. § 7237(d).

         B. 1969 Indictment for Violating 26 U.S.C. § 4742(a)

         Sullo was indicted on March 18, 1969, for transferring 686 grams of marihuana on or about October 21, 1968, without a written order, in violation of 26 U.S.C. § 4742(a). See Notice 4 [#15-1] (Case File in CR 69-62-F). On April 14, 1969, Sullo's defense attorney filed a motion to continue his case, pending the Supreme Court's issuance of a decision in a pending case, United States v. Covington, challenging a conviction under § 4744 of the Marihuana Tax Act. See id. at 11. Defense counsel also filed a motion to dismiss the indictment, arguing that “the indictment charges the defendant with a violation of [26 U.S.C. § 4742(a)], and that this section as applied to the defendant is violative of Amendment V of the U.S. Constitution.” Id. at 9.[1]

         C. 1969 Supreme Court Cases Addressing the Marihuana Tax Act

         On May 19, 1969, the Supreme Court held in Leary v. United States that a defendant's timely and proper assertion of the Fifth Amendment privilege against self-incrimination served as a complete defense to prosecution under § 4744(a)(2). See 395 U.S. at 27. United States v. Covington, 395 U.S. 57, 59 n.3 (1969), issued the same day as Leary, held that the privilege against self-incrimination also served as a complete defense under § 4744(a)(1).

         Leary recognized that § 4742 required a transferee “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 [required] occupational tax.” 395 U.S. at 16. Order forms indicating this information were then open to inspection by state and local law enforcement officers at a time when each state prohibited possession of marihuana. Id. By filing written order forms, non-registered transferees would be revealing their possession of marihuana in violation of state law. Id. at 18. This class of possessors “constituted a ‘selective group inherently suspect of criminal activities.'” Id. ...


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