Brawer v. United States

• Decision Date: 13 December 1978
• Docket Number: No. 78 Civ. 3513 (MP).,78 Civ. 3513 (MP).
• Parties: Alfred BRAWER, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of New York

462 F. Supp. 739

Alfred BRAWER, Petitioner, v. UNITED STATES of America, Respondent.

No. 78 Civ. 3513 (MP).

United States District Court, S. D. New York.

December 13, 1978.

COPYRIGHT MATERIAL OMITTED

Alfred Brawer, pro se.

Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York by Mark F. Pomerantz, Asst. U. S. Atty., for respondent.

DECISION

POLLACK, District Judge.

This is a motion pursuant to 28 U.S.C. § 2255 for an order vacating the sentence and judgment of conviction entered on Indictment 72 Cr. 64 (MP). The United States Attorney has filed a lengthy memorandum in opposition to Brawer's motion, and the issues raised by the motion have been fully considered by the Court. For the reasons set forth below, the motion must be denied.

Petitioner was convicted in July 1972, on three counts of conspiracy to transport and transporting stolen United States Treasury bills in interstate and foreign commerce. Concurrent sentences of five, seven and seven years were imposed, and Brawer is now out of prison and under parole supervision in Nevada. On direct appeal the Court of Appeals remanded the case for consideration of a new claim that the government had improperly concealed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See United States v. Brawer, 482 F.2d 117 (2d Cir. 1973). This Court held a hearing and found no violation of Brady v. Maryland, supra, had been established. See United States v. Brawer, 367 F.Supp. 156 (D.C.1973). The Court of Appeals adopted the findings of this Court on the Brady issue and affirmed the convictions of all of the defendants. 496 F.2d 703 (2d Cir. 1974). The Supreme Court denied certiorari. 419 U.S. 1051, 95 S.Ct. 628, 42 L.Ed.2d 646 (1974).¹

Brawer now moves to vacate his sentence and conviction, alleging several grounds for relief. Primarily, Brawer asserts that prior uncounseled convictions were used to impeach his trial testimony in violation of Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). Brawer also complains that he and his counsel were not permitted to inspect or to correct inaccuracies in his presentence report, that he did not receive effective assistance of counsel, and that testimony concerning his prior criminal record was introduced for the improper purpose of showing his criminal disposition. Brawer has also requested that the Court recuse itself from decision of this motion.

Briefly, the proof at trial showed the petitioner to have been the moving force behind the attempted negotiation of $262,000 worth of stolen United States Treasury bills in the spring of 1969. The evidence established, and the jury by its verdict found, that the bills had been stolen and that Brawer and his co-defendants knew this when they attempted to sell the bills in Canada and Switzerland.

Brawer and co-defendant Ralph Ignomirello were jointly represented at trial by James Horan, Esq. Their defense was three-fold. First, they disputed the sufficiency of the government's proof that the Treasury bills had been stolen from the Francis I. duPont & Co. brokerage house. Second, they denied any knowledge that the bills were stolen. Finally, they launched a sharp attack on the credibility of Salvatore Mauceli, an accomplice witness who pleaded guilty before trial and who testified for the government.

As part of the defense of the case, Alfred Brawer testified on his own behalf. The transcript of his trial testimony indicates that his prior criminal record was inquired into first on direct examination by Mr. Horan, Brawer's attorney:

"DIRECT EXAMINATION

BY MR. HORAN:

Q. Mr. Brawer, have you ever been convicted of a crime?

A. Yes, I have.

Q. Tell us about it, will you?

A. In respect to the many times that I have been convicted, all collectively or singly?

Q. Were you convicted more than once of a crime?

A. Yes, I was.

Q. When was your first conviction?

A. Memory will not serve me to dates. I would appreciate it if you tell me the dates and I will corroborate them.

Q. All right.

In the years 1935 to 1939, were you involved in a conviction of a crime at that particular time, within that period of time?

A. In '35 to '39?

Q. Right.

A. 37 years, let me see. If you have a date there I must have been.

Q. Well, I have some information here — THE COURT: Mr. Horan, please let the witness testify. When you start out by indicating that you have information, you are putting yourself in the posture of giving the testimony. I think you should ask the witness the questions.

Q. Do you recall when you had been convicted of a crime, Mr. Brawer, on your own matter of knowledge at this particular time?

A. I believe I recall fairly accurate in a sequential order of events in which I have had legal difficulty, convicted, imprisoned and otherwise. May I recite them in order? Then I will try. But to date exactly, I cannot.

Q. That's enough for now."

At this point Brawer's testimony was interrupted so that another defense witness could testify. Brawer later retook the witness stand, however, and — still on direct examination — elaborated further on his record:

"Q. Have you done work for the Federal Bureau of Investigation?

A. I certainly have.

Q. For how many years?

A. Covering a period of 16 years or better.

Q. Did that work that you did for the FBI — what year did that begin, do you recall?

A. The first beginning was approximately 1953.

Q. You testified this morning that you had been convicted of a crime. Did your work for the FBI begin subsequent to your having been convicted of a crime?

A. Subsequent and during.

Q. During your conviction?

THE WITNESS: During a specific conviction.

THE COURT: A conviction occurs at a date.

THE WITNESS: I haven't been asked that yet, your Honor. I am just answering directly.

* * * * * *

Q. I believe, Mr. Brawer, in response to one of my questions, you stated that you had been working for the FBI during a period of a conviction; is that correct?

A. That's right, sir.

Q. Would you explain that?

A. Yes. I had begun working with the FBI specifically at their request coming out of retirement after any last convictions that I have ever had, but one of the cases in which I was working on under the direct advice and instructions and comparisons of decisions ended in my arrest, and subsequent conviction while yet being with the department and I served time on that, despite everything the department and every other agency of this country could do to overcome it. That's what I meant by during a conviction.

Q. Was any effort by that or any other agency made to help you at the time of that difficulty?

A. Almost every law enforcement agency in the country attempted to do it, but it was impossible at the time.

Q. That is, come to your aid and assistance?

A. Oh, no, they came to my aid and assistance, but in the area where this particular action took place, there is no Federal law enforcement agency in the world that could upset the local constabulary's desires, and I couldn't get taken out.

MR. HOROWITZ: Your Honor, I am going to move to strike that answer.

THE COURT: Strike that out. The jury will ignore this entire statement on the part of this witness. Pay no attention to it. Erase it from your minds."

The tactical reason for this foray into Brawer's past became apparent in defense counsel's closing argument. There, Mr. Horan attempted to portray the petitioner as a person who had put his troubles with the law behind him and, at considerable peril to himself, become an undercover agent for the FBI:

"He also told you about his work as an undercover agent, sixteen years with the FBI. I don't have to tell you; I am sure all of you read the paper, and particularly these days, with television and everything else, we are far more acquainted with these days with the work of an undercover agent than we would have been probably ten or fifteen years ago."

"As you know, the undercover agent's work is pretty risky. An undercover agent infiltrates. He infiltrates into areas where it is dangerous, that he can't do so openly, and probably where he is not supposed to be, and if his presence is known, that there is an undercover agent for the FBI, you know what could happen to him."

* * * * * *

". . . The reason I am bringing that up is you also heard Mr. Brawer say about having been convicted of a crime. Just remember the dates we were talking about. Mr. Brawer may not have been an angel many, many, many years ago, but whatever he was then, he is not now and he was not in the year 1969, either, because for sixteen years prior to 1969 he had been what he said he was: an undercover agent for the FBI.

During that period of time, except for one incident, he was involved with the FBI for all that time and for one incident in that period of time many, many, many years ago, he had been convicted of a crime while still — prior to that conviction, during that conviction and subsequent to that conviction — an undercover agent for the FBI."

On cross-examination of Brawer, the government inquired into his criminal record and his alleged relationship with the FBI. Neither the defendant nor his counsel objected to this line of questioning. Indeed, at one point Brawer attempted to ask to see his criminal sheet in order to help him remember the dates of his convictions, but the Court denied the request and directed that he answer the questions put to him. Mr. Horan did not object, but interjected to say:

"Excuse me, your Honor. I believe this is an important area. I am only interested in the witness clearly understanding before the jury that the question was in relation to convictions, not to charge, but to conviction."

"That's all."

Evidence of four prior convictions was elicited by the government. Brawer admitted to a conviction in 1939 or 1940 for breaking and entering. He denied having been convicted in Kansas in 1949 for grand larceny, claiming that there had been only what he termed "a private arrangement in ...