Appeal from a conviction entered in the United States District Court for the District of Connecticut before Judge T.F. Gilroy Daly, for wilful evasion of federal income taxes following defendant's plea of nolo contendere to a charge that he filed a false and fraudulent income tax return on behalf of himself and his wife for the calendar year 1973, which substantially understated their joint tax liability. Affirmed.
Before Mansfield and Friendly, Circuit Judges, and Sifton,*fn* District Judge.
This is an appeal by John DePoli from his conviction entered upon a plea of nolo contendere to one count of a two-count indictment which charged him with willful evasion of personal income taxes owed by DePoli and his wife for the calendar years 1973 and 1974 in violation of 26 U.S.C. § 7201. DePoli's plea was accepted by Judge T. F. Gilroy Daly of the District of Connecticut following the judge's disposition by rulings from the bench of a series of pre-trial motions. DePoli's motions questioned the methods by which the investigation leading to defendant's indictment was conducted, the method of selection of grand juries in the District of Connecticut, and the method by which the government proposed to prove its case at trial. At the time of plea, DePoli's attorney "reserved" the right to appeal Judge Daly's disposition of the pre-trial motions, but neither requested nor obtained the consent of Judge Daly to this procedure. Our prior cases have made clear that such consents, as well as the consent of the Government counsel, are required in all cases involving pleas contingent on preserving a right to appeal rulings with regard to non-jurisdictional defects in a criminal prosecution and that in their absence a plea of guilty or nolo contendere may result in a waiver of objections to such defects in the prosecution. United States v. Doyle, 348 F.2d 715, 719 (2d Cir.), cert. denied, 382 U.S. 843, 86 S. Ct. 89, 15 L. Ed. 2d 84 (1965); United States v. Mann, 451 F.2d 346, 347 (2d Cir. 1971); United States v. Selby, 476 F.2d 965, 967 (2d Cir. 1973); and see United States v. Rothberg, 480 F.2d 534, 535 (2d Cir.), cert. denied, 414 U.S. 856, 94 S. Ct. 159, 38 L. Ed. 2d 106 (1973); United States v. Faruolo, 506 F.2d 490, 491 n.2 (2d Cir. 1974); United States v. Burke, 517 F.2d 377, 379 (2d Cir. 1975); United States v. Fury, 554 F.2d 522, 524 n.2 (2d Cir.), cert. denied, 433 U.S. 910, 97 S. Ct. 2978, 53 L. Ed. 2d 1095 (1977); United States v. Coyne, 587 F.2d 111, 115 (2d Cir. 1978); and United States v. Price, 599 F.2d 494 (2d Cir. 1979).*fn1 We conclude that failure to follow the procedures set forth in our earlier cases has resulted in a waiver of certain of appellant's arguments in the circumstances here presented. With regard to the other arguments raised on this appeal, we have considered them on the merits and affirm the judgment below.
DePoli's principal complaint on this appeal concerns Judge Daly's denial of his motion to suppress evidence said to have been derived from the probation office files created in connection with a probationary term imposed on DePoli by the Connecticut District Court in 1963. DePoli's 1963 sentence followed his plea of guilty to an indictment which charged him with engaging in the business of accepting wagers without registering or paying the special occupational tax owed by persons in that business, a type of prosecution which was, subsequent to his conviction, held unconstitutional in Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889 (1968). See Grosso v. United States, 390 U.S. 62, 88 S. Ct. 709, 19 L. Ed. 2d 906 (1968); 26 U.S.C. § 4401 et seq.
DePoli's argument is twofold. First, he contends that, since his probation was served pursuant to a judgment of conviction which was vacated in United States v. Summa, DePoli et al., 362 F. Supp. 1177 (D.Conn.1972), aff'd without opinion, Docket No. 73-7161 (2d Cir. August 14, 1973), as a result of the Supreme Court's decisions in Marchetti and Grosso, it was improper thereafter for an IRS agent to examine the files generated as a result of the probationary sentence. Second, DePoli argues that disclosure of the probation office files to the IRS agent without court approval violated Rule 32 of the Federal Rules of Criminal Procedure, a violation which he contends warranted suppression of all evidence derived from that act.
DePoli's first argument, that his statements to his probation officer were tainted by reason of the fact that they derived from his vacated conviction, takes two forms. First, DePoli regards his statements to his probation officer as involuntary because made in ignorance of the fact that he had an absolute fifth amendment defense to prosecution for violation of the wagering tax laws. The argument relies on too literal an identification of voluntariness with "knowing" choice. See Schneckloth v. Bustamonte, 412 U.S. 218, 224, 93 S. Ct. 2041, 2046, 36 L. Ed. 2d 854 (1973). DePoli's will was not "overborne" or "his capacity for self-determination critically impaired" by his probation officer. Id. at 225, 93 S. Ct. at 2047. On the contrary, the invalidity of DePoli's conviction was, on this record, a matter concerning which both the probation officer and DePoli were equally ignorant or which both were equally able to predict. We see no basis for concluding that DePoli's statements to his probation officer resulted from an involuntary waiver of his fifth amendment privilege simply because of their shared ignorance of the invalidity of the prosecution on which DePoli's conviction was based.
DePoli's second point is that his statements to his probation officer must be suppressed because they would not have been made but for his prosecution under a statute which could not be constitutionally enforced against him. This contention must also be rejected. The view that an unconstitutional law should be treated as having had no effects whatsoever from the date of its enactment, see, e.g., Norton v. Shelby County, 118 U.S. 425, 442, 6 S. Ct. 1121, 1125-1126, 30 L. Ed. 178 (1886), has been replaced by a more realistic approach which recognizes that "(t)he actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored." Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 60 S. Ct. 317, 318, 84 L. Ed. 329 (1940). Whether a particular consequence of an unconstitutional conviction can be "justly ignored" will depend on the reason for which the conviction was invalidated and the nature of the particular consequence sought to be avoided, among other factors, ibid; Lemon v. Kurtzman, 411 U.S. 192, 198-99, 93 S. Ct. 1463, 1468, 36 L. Ed. 2d 151 (1973) (Lemon II) (plurality opinion). Thus, where the reason for invalidating a prosecution was, as in Marchetti and Grosso, that it sought to punish conduct protected by the fifth amendment, any punishment, including not only the conviction, but the collection of fines and the prosecution of criminal forfeitures, is required to be terminated because "we have held that the conduct being penalized is constitutionally immune from punishment." United States v. United States Coin and Currency, 401 U.S. 715, 724, 91 S. Ct. 1041, 1046, 28 L. Ed. 2d 434 (1971).
It is a far cry from United States v. United States Coin and Currency, supra, to this case, however. The consequence here sought to be ignored is not, on this record, part of the punishment of DePoli for engaging in constitutionally protected behavior, i. e., his failure to register as a gambler or to purchase a wagering tax stamp. It was, instead, part of an IRS investigation of DePoli for the crime of tax evasion. To rule that records created during the course of DePoli's sentence and probation, in effect, do not exist would not serve the purpose for which his conviction was set aside. On the other hand, it would ignore the "fact of legal life (which) underpins our modern decisions recognizing a doctrine of nonretroactivity," namely, "our recognition that . . . rules of law are hard facts on which people must rely in making decisions and in shaping their conduct." Lemon v. Kurtzman, supra, 411 U.S. at 199, 93 S. Ct. at 1468 (plurality opinion).
We turn, then, to DePoli's claim that Rule 32 of the Federal Rules of Criminal Procedure prohibited the disclosure of information derived from DePoli's presentence report and record as a probationer without prior court approval and that the failure to obtain prior court approval for the disclosure to the IRS agent merits suppression of all evidence derived from that examination.
The most obvious answer to this claim is that Judge Daly found that nothing "used to establish this case" was derived from the examination of the files of the probation department since "(t)he government has established that independent and alternative sources were used to establish this case aside from the information . . . gathered . . . from the probation report." (A. at 135.) This ruling is, on the record before us, not clearly erroneous.
The investigation which led to DePoli's indictment had numerous sources, apart from the visit to his probation officer, including contacts with the Connecticut State Police, who provided evidence concerning DePoli's prior activities as a bookmaker and his previous criminal record; information supplied by the Connecticut Strike Force; DePoli's personal tax returns, which disclosed some of his business interests, his address and those of his relations; the United States Post Office, which supplied information concerning his correspondents from a mail watch, discussed more at length below; a tape recording of a conversation discussing DePoli's bookmaking business; a check of Connecticut court records of deeds and mortgages; an interview with DePoli; and records supplied by DePoli's accountants.
The inspection of the probation office files which occurred after the preliminary steps in the investigation, including the contact with the Strike Force, the Connecticut State Police, and the Post Office, had already occurred produced, according to the evidence below, no information which was later used in any fashion in the investigation, except in two categories. First, the revenue agent in his report to the Department of Justice recommending prosecution refers to statements by DePoli to his probation officer to the effect that he was discharged from the army for financial hardship in 1949 and that a 1962 arrest for accepting wagers was caused by his dire financial straits at the time, as some evidence to negate the possibility of a cash hoard defense to a prosecution for tax evasion based on a net worth-expenditures analysis. In addition, the revenue agent refers in the same report to inconsistencies between DePoli's account of his activities and sources of income during his probation to his probation officer and the picture of DePoli's activities uncovered during the IRS investigation, as some evidence that DePoli was engaged in bookmaking, thereby providing him with a motive for concealing the true source of his income and filing a false return. We cannot, on this record, conclude that Judge Daly was clearly erroneous in finding that these limited uses of the probation report in the investigation of this case were harmless. There is ample evidence in the record to establish that the case against Mr. DePoli would have gone forward, even had the information obtained from the probation officers not been part of the investigative file. United States v. Cole, 463 F.2d 163, 175 (2d Cir.), cert. denied, 409 U.S. 942, 93 S. Ct. 238, 34 L. Ed. 2d 193 (1972); United States v. Friedland, 441 F.2d 855 (2d Cir.), cert. denied, 404 U.S. 867, 92 S. Ct. 143, 30 L. Ed. 2d 111 (1971). That file included ample evidence of a much more direct sort than that referred to by the revenue agent with regard both to DePoli's activities as a bookmaker (including his tape recorded conversations) and with regard to DePoli's efforts to conceal from everyone, including his own accountants, the true source of his income. Since at no time has it been suggested that Mr. DePoli's explanation for his high level of expenditures in 1973 is that he had a cash hoard which came into existence before either 1949 or 1962, there is no basis for faulting Judge Daly's conclusion that the reference to the IRS agent's report to DePoli's financial condition at those times had no effect on the investigation's outcome.
Judge Daly's basis for ruling on the use of the probation report is, however, not even addressed in DePoli's brief on this appeal. Instead, it is DePoli's position that, since Judge Daly failed to rule on the use to which his statements to the probation officer could be put at trial and since any use of those statements at trial or otherwise was improper, his conviction below should be reversed.
We find this argument waived as a result of DePoli's failure to obtain the consent of Court to the reservation of DePoli's right to appeal this disposition of his pretrial motion. Had DePoli called to the attention of Judge Daly his intention of appealing from the judge's failure to suppress all use of DePoli's statements to his probation officer whether in connection with his indictment or at trial we have no doubt that Judge Daly would have declined to consent to the reservation of a right to appeal since the issue of the trial use of the probation information had been reserved until trial. In an earlier ruling Judge Daly had stated that, if the government during the course of the trial decided to use material derived from the probation report, it should make a side bar application during the trial to do so, at which time the court would rule on the issue (Tr. at 59). Cf. United States v. Cole, supra, 463 F.2d at 171 (in which a similar procedure was employed). In view of this undertaking by the court to rule on the use at trial of material derived from the probation report during the course of the trial and in view of defendant's failure to use the procedures set forth in earlier decisions of this ...