Dalli v. United States

Decision Date14 January 1974
Docket NumberDocket 73-1536.,No. 47,47
Citation491 F.2d 758
PartiesBarthelmio DALLI, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Second Circuit

Albert J. Krieger, New York City (Alan Scribner, New York City, of counsel), for appellant.

Paul V. French, Asst. U. S. Atty. (James M. Sullivan, Jr., U. S. Atty., N. D. N. Y., Syracuse, N. Y., of counsel), for appellee.

Before SMITH, MANSFIELD and OAKES, Circuit Judges.

MANSFIELD, Circuit Judge:

After a jury trial before Judge MacMahon Barthelmio Dalli was on May 26, 1969, convicted of selling, receiving and concealing heroin, 21 U.S.C. §§ 173 and 174, and of conspiracy to commit the same, 18 U.S.C. § 371. He was sentenced to concurrent terms of 20 years on each of two counts. The conviction was affirmed by this court. United States v. Dalli, 424 F.2d 45 (2d Cir.), cert. denied, 400 U.S. 821, 91 S.Ct. 39, 27 L.Ed.2d 49 (1970). In November 1972 Dalli filed a petition pursuant to 28 U.S.C. § 2255 alleging that the evidence admitted at his trial was tainted by illegal wiretap activities of the New York state police. In support of his petition Dalli introduced an affidavit from a former New York state police lieutenant who had supervised the alleged wiretapping. On the basis of the motion papers and the files and records of the case, Judge MacMahon denied the motion without a hearing. In view of the deficiencies of the supporting affidavit we affirm.

Appellant's § 2255 petition seeks in effect to reopen an issue raised and resolved against him after a pretrial suppression hearing in May 1969. Prior to appellant's trial a full evidentiary hearing was held to determine whether his arrest and the heroin found in his possession at the time of arrest were the fruits of an allegedly illegal state wiretap. The federal government maintained that its investigation and arrest of the appellant were independent of any state investigation or wiretap. Federal agents testified that their interest in appellant was sparked by his frequent visits to the Beauty Trail Hair Parlor, reputedly an emporium for narcotics, located in Brooklyn. Their observations prompted them to check appellant's telephone record, which disclosed several calls to Thomas Pytel, a man suspected by Canadian authorities to be trafficking in narcotics. Further surveillance of appellant revealed a meeting on September 7, 1968, between appellant and Stanley Simmons, likewise a suspected dealer in narcotics. Several days later federal agents followed appellant and Simmons to a Plattsburg, New York, motel where the two met with Pytel and a Canadian associate to transact some business in narcotics. Dalli and Simmons were arrested shortly after leaving the motel with 11 pounds of heroin in their possession.

At the 1969 pretrial suppression hearing it was disclosed that the New York state police had, pursuant to a New York state court order, been wiretapping the Beauty Trail Hair Parlor during August and September 1968.1 The government produced the wiretaps and transcripts thereof for inspection by appellant. Dalli and his co-defendants seized upon only one call as evidence of taint. The call was between Dalli and Simmons, made from the telephone at the Beauty Trail Hair Parlor, in which the two agreed to meet on the evening of September 7, 1968. This was the meeting watched by the federal agents, which occurred several days prior to Dalli's arrest. The agents, however, testified that they had received no information concerning the September 7th meeting from the state police, that their knowledge of the meeting and their ultimate arrest of appellant resulted solely from their 24-hour surveillance of appellant, and that they did not learn of the wiretaps until much later, shortly before the 1969 hearing. Supporting their version of the case was the testimony of Charles Cassino, then a New York state police lieutenant in charge of the Beauty Trail Hair Parlor wiretaps. Cassino testified that he had passed no wiretap information to the federal agents; indeed, he professed ignorance of the fact that Dalli had spoken with Simmons on an intercepted call. On the basis of this testimony the district court concluded that the federal investigation and arrest of Dalli stood untainted by the state wiretap activities. Thereupon Dalli was tried and convicted.

Three and one half years after his conviction Dalli sought by the present § 2255 petition to overturn the earlier finding that his conviction was untainted, or at least to re-argue its merits, largely on the basis of an affidavit from former lieutenant Cassino.2 Judge MacMahon, who had presided at the 1969 suppression hearing and trial, dismissed the present petition without an evidentiary hearing. Appellant here urges that it was error to have denied him a hearing. We disagree.

As a recent pronouncement indicates, this court takes a dim view of any summary rejection of a petition for postconviction relief when supported by a "sufficient affidavit." See Taylor v. United States, 487 F.2d 307 (2d Cir. Nov. 14, 1973). But we have, consistently with that pronouncement, recognized that a judge is well within his discretion in denying a petition when the supporting affidavit is insufficient on its face to warrant a hearing. See Accardi v. United States, 379 F.2d 312 (2d Cir. 1967); Mirra v. United States, 379 F.2d 782 (2d Cir. 1967). Section 2255 requires a hearing to resolve disputed issues of fact "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." See Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 1462, 36 L.Ed.2d 169 (1973). In making that threshold determination the court looks primarily to the affidavit or other evidence proffered in support of the application in order to determine whether, if the evidence should be offered at a hearing, it would be admissible proof entitling the petitioner to relief. Mere generalities or hearsay statements will not normally entitle the applicant to a hearing, D'Ercole v. United States, 361 F.2d 211, 212 (2d Cir.), cert. denied, 385 U.S. 995, 87 S.Ct. 610, 17 L.Ed.2d 454 (1966), rehearing denied, 385 U.S. 1032, 87 S.Ct. 758, 17 L.Ed.2d 680 (1967); United States v. Catalano, 281 F.2d 184 (2d Cir.), cert. denied, 364 U.S. 845, 81 S.Ct. 88, 5 L.Ed.2d 69 (1960); Paroutian v. United States, 395 F.2d 673, 674 (2d Cir. 1968), cert. denied, 393 U.S. 1058, 89 S.Ct. 700, 21 L.Ed.2d 700 (1969); Holland v. United States, 406 F.2d 213, 216 (5th Cir. 1969); Barnett v. United States, 439 F.2d 801, 802 (6th Cir. 1971), since such hearsay would be inadmissible at the hearing itself. United States v. Pisciotta, 199 F.2d 603, 607 (2d Cir. 1952); Brady v. United States, 404 F.2d 601, 602 (10th Cir. 1968), affd., 397 U.S. 742, 90 S.Ct. 1463, 25 L. Ed.2d 747 (1970). The petitioner must set forth specific facts which he is in a position to establish by competent evidence. Machibroda v. United States, 368 U.S. 487, 495-496, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). Furthermore, where the petitioner has already had a full evidentiary hearing upon the same claim and seeks another hearing on grounds of newly discovered evidence, greater specificity is required than if no hearing had been held, in order to avoid relitigation of issues on the basis of proof already deemed insufficient.

Applying these principles, we are satisfied that the Cassino affidavit, which is the crux of the petition, failed to meet this threshold of sufficiency. Most of the affidavit is devoted to evidence already received and considered at the 1969 suppression hearing. When it comes to the key "newly discovered" evidence offered to support the renewed claim that the federal arrest and seizure was tainted by the state wiretap Cassino's averments are not only vague, indefinite and conclusory but marbled with hearsay. Thus Cassino states that "subsequent to May, 1969, I learned that it was a common practice during the course of this investigation for Investigator Kaynor of the New York state police to take the tapes representing the previous day's eavesdropping and together with Agent John J. O'Brien of the Bureau of Narcotics and Dangerous...

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