The opinion of the court was delivered by: Marovitz, District Judge.
Defendant's Motion to Dismiss
Plaintiff has filed a Motion in the nature of a Motion for Writ
of Error Coram Nobis seeking to set aside plaintiff's conviction
and sentence in United States v. Angelini, 63 CR 506, on the
ground that his constitutional privilege against
self-incrimination, as set forth in Marchetti v. United States,
390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968) and Grosso v.
United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968),
were violated in the imposition of that conviction and sentence.
Defendant has moved to dismiss asserting that the decisions on
which plaintiff relies are not retroactive, that since the
have been served the issue is moot, and that alleged resulting
civil disabilities may have arisen whether or not plaintiff was
convicted in the challenged criminal action.
We know of no reason, nor has the Government suggested any, why
the cases of Marchetti and Grosso should not be applied
retroactively. United States v. Lucia, 416 F.2d 920 (5th Cir.
1969), aff'd en banc, 423 F.2d 697 (1970). That the penalty
imposed in the criminal action has been served does not render
the present issue moot as a convicted defendant is entitled to
have a fundamentally erroneous judgment vacated even though his
sentence has been served. 28 U.S.C. § 1651(a); United States v.
Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954); see
Holloway v. United States, 393 F.2d 731, 732 (9th Cir. 1968);
United States v. Forlano, 319 F.2d 617, 619 (2d Cir. 1963).
The third aspect of defendant's motion to dismiss relates to
plaintiff's contention that because of his criminal conviction he
has suffered certain civil disabilities such as having revoked
his state license to conduct insurance business. Whether such a
revocation would be possible regardless of the challenged
conviction is beside the essential point that plaintiff is
entitled to have an improper judgment vacated. Now, the
Government contends that the mere existence of a
Marchetti-Grosso defense would not alter the "proven facts" in
the criminal action, implying that the Illinois Director of
Insurance could still rely on those "proven facts" to deny
plaintiff his license to conduct insurance business. However, the
evidence necessary to prove some of these "facts" would, under
Marchetti-Grosso, be subject to a motion to suppress, possibly
rendering them unprovable. Plaintiff may or may not be entitled
to an insurance brokerage license in Illinois, but that
determination cannot be made using evidence obtained in violation
of his Constitutional rights. See Hanon v. United States,
428 F.2d 101 (8th Cir. 1970).
The motion to dismiss is denied.
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