Appeal from the United States District Court for the Southern District of Illinois, Southern Division - No. S CIV 73 140 Omer Poos, Judge.
Fairchild, Chief Judge, Cummings and Sprecher, Circuit Judges.
In September 1968, petitioner Robert Strauss and Thaddeus M. Ohrynowicz were charged with a check-kiting scheme in violation of 18 U.S.C. §§ 1341 and 1342.*fn1 After a jury trial, petitioner was convicted on Counts II and IV under Section 1341 and on Counts V, VIII and X under Section 1342. The evidence against Strauss is summarized in our prior opinion affirming his conviction. United States v. Strauss, 452 F.2d 375 (7th Cir. 1971), certiorari denied, 405 U.S. 989, 31 L. Ed. 2d 455, 92 S. Ct. 1252. This appeal results from the district court's denial without opinion of petitioner's motion under 28 U.S.C. § 2255. We reverse.
Petitioner contends that in light of United States v. Maze, 414 U.S. 395, 38 L. Ed. 2d 603, 94 S. Ct. 645, it is now clear that the conduct for which he was tried and convicted violates neither Sections 1341 nor 1342. Maze held that 18 U.S.C. § 1341, the so-called mail fraud statute, did not reach a scheme to defraud where an accused obtained goods and services from motel operators through a stolen credit card, knowing that the victims would subsequently mail the sales slips to a bank which would later mail it to the lawful owner of the credit card. The Court reasoned that Maze's "scheme reached fruition when he checked out of the motel[s], and * * * he probably would have preferred to have the invoice misplaced by the various motel personnel and never mailed at all." 414 U.S. at 402. Therefore, the Court held that the mailings were not "sufficiently closely related to Maze's scheme to bring his conduct within the statute." 414 U.S. at 399. Strauss also contends that he was denied the constitutional right to a speedy trial. He claims that if his position as to either of these arguments is accepted, he is entitled to relief under Section 2255.
Conceding that Maze is "retroactive," the Government agrees with petitioner that a Section 2255 action will lie to attack collaterally on Maze grounds a pre- Maze mail fraud conviction, citing Davis v. United States, 417 U.S. 333, 41 L. Ed. 2d 109, 94 S. Ct. 2298, and United States v. Travers, 514 F.2d 1171 (2d Cir. 1974). The Government further concedes that the use of the mails proved at trial was insufficiently related to Strauss' scheme to bring his conduct within Section 1341. Therefore, the Government acquiesces in petitioner's motion for relief as to Counts II and IV charging Section 1341 violations.*fn2 With respect to Counts V, VIII and X charging Section 1342 violations, however, the Government makes no similar concessions.
I. The Section 1341 Counts
As noted supra, the Government concedes that the propositions of law set forth in Travers, supra, relating to both the "retroactive" effect of Maze and the availability of collateral relief to attack pre- Maze convictions are correct. While such government concessions are often useful to a court, they do not, at least as to questions of law that are likely to affect a number of cases in the circuit beyond the one in which the concessions are made, relieve this Court of the duty to make its own resolution of such issues. Thus we proceed to a determination of the legal issues largely independently of the Government's concessions.
A. Retroactive Effect of Maze
In examining the effect of a Supreme Court decision that, in effect, declares the prior interpretation of a statute by a circuit in error, it is useful to note the characterization of the phrase "the law of the circuit" suggested by Judge Friendly in Travers, supra :
"The Government urges in effect that Maze was indeed an overruling decision in that it changed 'the law of the circuit' -- indeed of several. But reliance on the quoted expression, of rather recent vintage, which is only a short-hand way of saying that the views of a court of appeals on an issue of federal law may remain undisturbed for a long time, can lead to dangerously wrong results. There are not eleven omnipresences of federal law brooding over various portions of the United States; in the long run there is only one, although some time may be needed to reveal it." (514 F.2d at 1174, n. 4.)
A similar view was expressed by this Court in Gates v. United States, 515 F.2d 73, 78 (7th Cir. 1975), where in reference to a Supreme Court decision which settled a split among the circuits as to the meaning of a statute (rejecting the interpretation adopted by this Court), Judge Hastings stated:
"The decision of the court in [Warden v. Marrero, 417 U.S. 653, 41 L. Ed. 2d 383, 94 S. Ct. 2532] interpreting the 1970 Comprehensive Drug Abuse Prevention and Control Act was a declaration of what the law had meant from the date of its effectiveness onward. United States v. Estate of Donnelly, 397 U.S. 286, 294-295, 25 L. Ed. 2d 312, 90 S. Ct. 1033 (1970). A statute does not mean one thing prior to the Supreme Court's interpretation and something entirely different afterward."
Both Gates, supra, and Travers, supra, rely upon the opinion of this Court in Brough v. United States, 454 F.2d 370 (7th Cir. 1971). In Brough petitioner sought to attack his selective service conviction in a Section 2255 proceeding. Brough argued that a decision of the Supreme Court, which had been handed down after his appeal had been rejected, had shown the interpretation by this Court of the ...