Appeal from an order of the District Court for the Southern District of New York, Milton Pollack, Judge, denying appellant's petition to vacate his conviction for mail fraud and conspiracy to commit mail fraud through the use of counterfeit credit cards. Reversed, with instructions to grant the petition.
Friendly, Feinberg and Timbers, Circuit Judges.
Appellant Philip Travers was convicted in 1969 in the District Court for the Southern District of New York on twenty counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 1342 and one count of conspiracy to engage in mail fraud in violation of 18 U.S.C. § 371. He was sentenced to two years imprisonment on each count, to run concurrently. The conspiracy proved at trial was to produce, sell, and distribute counterfeit Diners' Club credit cards. While Travers was present on some occasions when a counterfeit card was used and once even requested use by another of such a card for his benefit, the substantive counts were based on use of the counterfeit cards by a co-conspirator, Pucci, for which Travers could be found guilty under the doctrine of Pinkerton v. United States, 328 U.S. 640, 90 L. Ed. 1489, 66 S. Ct. 1180 (1946). The mailings were for the purpose of collecting for goods or services already obtained by use of the counterfeit cards. In affirming the conviction, United States v. Kellerman, 431 F.2d 319 (2 Cir. 1970), we rejected a contention that, under Parr v. United States, 363 U.S. 370, 4 L. Ed. 2d 1277, 80 S. Ct. 1171 (1960), and Kann v. United States, 323 U.S. 88, 89 L. Ed. 88, 65 S. Ct. 148 (1944), the mailings subsequent to use of the cards were not related to the scheme sufficiently to come within the mail fraud statutes and held the case to be attracted rather by United States v. Sampson, 371 U.S. 75, 9 L. Ed. 2d 136, 83 S. Ct. 173 (1962), which had distinguished Parr and Kann on their facts. The Supreme Court denied certiorari, 400 U.S. 957, 91 S. Ct. 356, 27 L. Ed. 2d 266 (1970). Our construction of the mail fraud statute was shared by four other circuits.
Two other circuits later declined to follow this view. Having granted certiorari to resolve the conflict, the Supreme Court, in a 5-4 decision, United States v. Maze, 414 U.S. 395, 38 L. Ed. 2d 603, 94 S. Ct. 645 (1974), disagreed with the construction we had adopted in Kellerman. The majority opinion, by Mr. Justice Rehnquist, followed Parr and Kann and distinguished Sampson and Pereira v. United States, 347 U.S. 1, 98 L. Ed. 435, 74 S. Ct. 358 (1954), on which the Government had also relied. The Government does not dispute here, nor did it in the district court, that if Travers' case were now before us on a direct appeal, we would be obliged to reverse and direct dismissal of the indictment.
Shortly after the Maze decision, Travers, who had completed service of his sentence, petitioned the district court for a writ of error coram nobis, requesting that his conviction be vacated and his record expunged. Relying on United States v. National Plastikwear Fashions, Inc., Appeal of Greene, 368 F.2d 845 (2 Cir. 1966), cert. denied sub nom. Greene v. United States, 386 U.S. 976, 18 L. Ed. 2d 136, 87 S. Ct. 1171, rehearing denied, 386 U.S. 1043, 18 L. Ed. 2d 618, 87 S. Ct. 1490 (1967), the judge dismissed the petition on the ground that Travers had asserted no adverse legal consequences and that consequently there was no case or controversy. In so doing he overlooked an important difference that distinguishes Greene's case, namely, that it involved only a one month's sentence for the misdemeanor of criminal contempt. Travers' case is governed rather by United States v. Morgan, 346 U.S. 502, 505, 98 L. Ed. 248, 74 S. Ct. 247 (1954), which established that a motion in the nature of a writ of error coram nobis will lie under the All Writs statute, 28 U.S.C. § 1651, with respect to a federal felony conviction when the sentence has been fully served. Mr. Justice Reed observed, id. at 512-13 (footnote omitted):
Although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be affected.
We have frequently approved the entertaining of a motion in the nature of a writ in error coram nobis with respect to a felony conviction although the sentence has been served. See, e.g., Kyle v. United States, 297 F.2d 507, 509 (2 Cir. 1961); United States v. Keogh, 391 F.2d 138 (2 Cir. 1968). Indeed, the Government makes no attempt to support the decision on the ground on which it was rendered.
We could, of course, remand the case to the district court for consideration of the merits although neither side has requested this. But the issue is solely one of law and sound judicial administration will be furthered by our deciding it.
The Government concedes that, under Davis v. United States, 417 U.S. 333, 41 L. Ed. 2d 109, 94 S. Ct. 2298 (1974),*fn1 Travers' petition is not subject to dismissal simply because his primary claim is that his conviction was obtained in violation of the laws of the United States as we now know them to be rather than in violation of the Constitution. Its contention rather is that the Maze decision should not be given what it terms retroactive effect -- more specifically that it should not be applied to convictions that had become final in the sense that all direct appellate procedures had been followed or the time for taking them had expired.*fn2
In support of its position that Davis left open the issue whether collateral attack could be successfully mounted in a case like this, the Government points to the Court's statement that it expressed "no view on the merits of the petitioner's claim," 417 U.S. at 347, and to footnote 12 which read
In the absence of a decision by the Court of Appeals on the merits of the petitioner's contentions, this case is not an appropriate vehicle to consider whether the Gutknecht decision has retroactive application or whether the Fox case was correctly decided by the Court of Appeals.
The statement quoted from text seems to mean no more than that the Court was expressing no view whether Gutknecht v. United States, 396 U.S. 295, 24 L. Ed. 2d 532, 90 S. Ct. 506 (1970), had called for a result favorable to Davis on his direct appeal, as another Ninth Circuit panel had decided on what were conceded to be similar facts, United States v. Fox, 454 F.2d 593 (9 Cir. 1971), or whether the panel that had held the contrary in Davis' case, United States v. Davis, 447 F.2d 1376 (9 Cir. 1971), cert. denied, 405 U.S. 933, 30 L. Ed. 2d 809, 92 S. Ct. 939 (1972), was correct in ruling Gutknecht to be distinguishable, as Mr. Justice Powell in his Davis dissent, 419 U.S. at 347, 44 S. Ct. 2298, considered it to be. However, the somewhat inscrutable footnote does appear to have left it open to the Government also to argue, on the remand to the Ninth Circuit in Davis, that Gutknecht, holding a Selective Service Regulation to have been without legislative sanction, was inapplicable to registrants who had been processed before that case was decided. If it could argue that there, presumably it should be allowed to make the same argument here with respect to Maze. We also agree that the Government is not foreclosed by Mr. Justice Rehnquist's statement in dissent in Davis that the majority's decision "seems to provide full opportunity for all defendants convicted under the Mail Fraud Act in the circuits whose view was not accepted to relitigate those convictions in a § 2255 proceeding" and that the district courts, "faced with this influx of motions, will be faced with the difficult task of sifting through various factual claims to determine if the principles of Maze should be applied", 417 U.S. at 366, -- with no suggestion that such motions could be denied simply on the ground of "non-retroactivity" of Maze. Cassandra-like predictions in dissent are not a sure guide to the breadth of the majority's ruling, although it is of some significance that the author of Maze fully expected that Davis would lead to its application in § 2255 proceedings, at least when the defendant had previously exhausted all avenues of appellate review. We think his expectation was well founded.
The Maze decision was no thunderclap like those that have given rise to Supreme Court rulings limiting the temporal effect of constitutional decisions on criminal procedure, such as Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961), and Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).*fn3 Maze blazed no new trails; it simply decided which of two lines of Supreme Court decisions attracted cases where the fraud was perpetrated by use of a stolen or counterfeit credit card, with the mails involved only by the foreseeable efforts of the victim and his bank to effect collection. The Government had known of the argument that prevailed in Maze at least since Adams v. United States, 312 F.2d 137 (5 Cir. 1963). Despite its string of successes in five circuits, with frequent denials of certiorari, see United States v. Maze, supra, 414 U.S. at 398 n.2, the Government could not fairly conclude that the battle was forever won. The Tenth Circuit became the first to disagree, United States v. Lynn, 461 F.2d 759 (10 Cir. 1972), a decision from which the Government apparently did not seek certiorari, to be ...