553 F.2d 5 (2nd Cir. 1977), 920, United States v. Natelli
| Docket Number | 920,Docket 76-1494. |
| Citation | 553 F.2d 5 |
| Date | 28 March 1977 |
| Parties | UNITED STATES of America, Appellee, v. Anthony M. NATELLI, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
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Argued March 9, 1977.
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Jed S. Rakoff, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty. S.D. N. Y., Lawrence B. Pedowitz, Asst. U. S. Atty., New York City, of counsel), for appellee.
Philip A. Lacovara, Washington, D.C. (Hughes Hubbard & Reed, Washington, D.C.; Jay K. Wright, Ronald A. Stern, Washington, D.C., John S. Martin, Jr., New York City, of counsel; Martin, Obermaier & Morvillo, New York City, on the brief), for defendant-appellant.
(Victor M. Earle, III and Cahill Gordon & Reindel, New York City; Howard J. Krongard, William E. Hegarty, Mathias E. Mone, George Wailand, New York City, of counsel), for Peat, Marwick, Mitchell & Co., amicus curiae.
Before SMITH, FEINBERG and MULLIGAN, Circuit Judges.
PER CURIAM:
The appellant Anthony M. Natelli is an accountant who was convicted in the United States District Court for the Southern District of New York of making false and misleading financial statements in a proxy statement of National Student Marketing Corporation (NSMC) in violation of section 32 of the Securities Exchange Act of 1934, 15 U.S.C. § 78ff, as well as aiding and abetting those violations, 18 U.S.C. § 2. Joseph Scansaroli, an accountant who worked under Natelli's direction, was a co-defendant. Both were convicted on November 14, 1974 after a four-week jury trial before Hon. Harold R. Tyler, Jr., then a United States District Judge. While Natelli's conviction was affirmed on appeal, Scansaroli's conviction was initially reversed, then later reinstated on the government's petition for rehearing. On Scansaroli's petition for a rehearing the original reversal and remand for a retrial was reinstated. The opinions of this court fully setting forth the facts and the law were
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authored by Judge Gurfein and are reported at 527 F.2d 311 (1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 175 (1976). Natelli then moved for a new trial pursuant to Fed.R.Crim.P. 33, or in the alternative for relief pursuant to 28 U.S.C. § 2255. On October 20, 1976, Hon. Richard Owen, United States District Judge for the Southern District of New York, denied the relief sought in a five-page opinion. This appeal followed.
Natelli argues that there was insufficient evidence to support his conviction. Specifically, he urges that the United States failed to establish that a letter signed by Thomas Mullen, an executive of Eastern Airlines, "committing" his company to purchase NSMC services was false and misleading and known to be such by Natelli. This collateral attack must be rejected. As found by Judge Owen, the precise issue was raised by Natelli on a motion for acquittal at the conclusion of the government's case and on a motion for a new trial after the verdict in the district court, on his appeal to this court, on his motion for rehearing as well as on the petition for a writ of certiorari. The issue was specifically considered and rejected by Judge Gurfein in his opinion for this court, 527 F.2d at 318-21. Appellant does not dispute this but argues that the rule barring a collateral attack on the disposition of issues previously litigated should yield in the interests of justice. However, the authorities...
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