Castellana v. United States

• Decision Date: 22 May 1967
• Docket Number: Docket 31150.,No. 454,454
• Court: U.S. Court of Appeals — Second Circuit
• Parties: Peter CASTELLANA and Pride Wholesale Meat & Poultry Corp., Appellants, v. UNITED STATES of America, Appellee.

378 F.2d 231 (1967)

Peter CASTELLANA and Pride Wholesale Meat & Poultry Corp., Appellants, v. UNITED STATES of America, Appellee.

No. 454, Docket 31150.

United States Court of Appeals Second Circuit.

Argued May 9, 1967.

Decided May 22, 1967.

Archibald Palmer, New York City, for appellants.

Edward Meyer, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., Southern District of New York, Michael W. Mitchell, Asst. U. S. Atty., of counsel), for appellee.

Before SMITH, KAUFMAN and HAYS, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

Based in the main on conclusory epithets without benefit of factual basis, Peter Castellana and Pride Wholesale Meat & Poultry Co. (Pride) appeal from an order by Judge Bonsal denying without a hearing their motion, made pursuant to 28 U.S.C. § 2255, to set aside their judgments of conviction which this Court previously affirmed in United States v. Castellana, 349 F.2d 264 (2d Cir. 1965), cert. denied, 383 U.S. 928, 86 S.Ct. 935, 15 L.Ed.2d 847 (1966).¹

The appellants, along with 5 other defendants, were convicted by a jury after a six-week trial, of violating and conspiring to violate the federal bankruptcy fraud act, 18 U.S.C. §§ 152 and 371.² The evidence upon which the convictions were based is set forth in detail in our prior decision; accordingly, a brief summary of the history of this case will suffice. The indictment charged the 7 defendants with knowingly and fraudulently agreeing to transfer monies and property of the Murray Packing Co., Inc. (Murray), totaling approximately $1,300,000, in contemplation of Murray's bankruptcy proceedings or with intent of defeating the bankruptcy laws. The evidence at the trial established that the conspiracy commenced in the latter part of 1960 when Joseph Pagano approached David Newman and Joseph and Stanley Weinberg (owners and managers of Murray, a wholesaler of meat and poultry), and persuaded them to sell him a one-third stock interest in Murray in return for a comparatively nominal investment of $35,000; simultaneously, Pagano gave them assurances that he would substantially increase Murray's sales and profits. This company was experiencing serious financial difficulties at that time. But, through Pagano's efforts, meetings were arranged between Newman, the Weinbergs and Castellana, at which Castellana agreed that his company, Pride, of which he was president and which operated a chain of wholesale and retail stores in the New York City area, would embark upon a program of purchasing large quantities of meat from Murray. As a result, by March 1961, Pride was purchasing meat totaling over $900,000 per month from Murray, in contrast to its purchases of $1000 in the month of November 1960. And it is not without significance that the evidence established that these purchases accounted for roughly 65% of Murray's total sales. Moreover, the fraudulent plan had form and substance when it was established that Pride often paid less than the price for which it was billed, and frequently less than the actual cost to Murray.

As a consequence of the large sales to Pride, Murray multiplied its wholesale purchases five-fold between November 1960 and March 1961. Apprehensive suppliers seeking remuneration were constantly assured that payment for their merchandise was forthcoming, while almost at the same time Pagano was busy siphoning off Murray's cash. Within a period of less than 10 days he withdrew $747,000 from Murray's bank accounts. The Government's evidence was overwhelming and it revealed that the checks deposited by Pride in the Murray account during this time (representing payment for merchandise sold by Murray to Pride) substantially matched Pagano's withdrawals from the Murray account. See table at 349 F.2d at 270. As a result of this scheme, Murray's assets were soon depleted, and it ultimately passed into insolvency and bankruptcy, but not before the several defendants, after tentatively offering their creditors a settlement of forty cents on the dollar, fraudulently transferred another $112,000 to themselves.

Having set forth this brief but sufficient background of the controversy we are to decide, we proceed to examine the broadside attack made by Castellana and Pride in an effort to vacate their judgments of conviction.³ At the outset, it is claimed that the evidence produced by the Government at the trial was insufficient to sustain the jury's verdict because it did not prove the requisite criminal intent. But, we need not pause long over this for the same contention was argued to this Court on the direct appeal from the conviction, and an exhaustive study of the evidence led us to conclude that:

The evidence was more than sufficient to enable a reasonable jury to find appellants guilty as charged * * *. We cannot avoid the conclusion that reasonable jurors could have been convinced beyond a reasonable doubt that each of the individual defendants was guilty of `knowingly and fraudulently\' transferring or concealing Murray\'s property `in contemplation of a bankruptcy proceeding * * * or with intent to defeat the bankruptcy law.\' 349 F.2d at 266-267.

It is well settled law that § 2255 cannot be utilized in lieu of an appeal, see United States v. Rosenberg, 200 F.2d 666, 668 (2d Cir. 1952), cert. denied, 345 U.S. 965, 73 S.Ct. 949, 97 L.Ed. 1384 (1953); United States v. Walker, 197 F. 2d 287 (2d Cir.), cert. denied, 344 U.S. 877, 73 S.Ct. 172, 97 L.Ed. 679 (1952); nor may it be employed to relitigate questions which were raised and considered on the appeal, see United States v. Thompson, 261 F.2d 809, 810 (2d Cir. 1958), cert. denied, 359 U.S. 967, 79 S.Ct. 878, 3 L.Ed.2d 835 (1959); United States v. Marchese, 341 F.2d 782, 789 (9th Cir.), cert. denied, 382 U.S. 817, 86 S.Ct. 41, 15 L.Ed.2d 64 (1965). The instant § 2255 application, therefore, may not be utilized to reargue the sufficiency of the evidence.

Appellants next challenge the admission at the trial of certain depositions given by Castellana and other defendants in various civil and bankruptcy proceedings. Specifically, they object to the use against Castellana of a portion of Stanley Weinberg's civil deposition.⁴ But, these contentions were also raised on the direct appeal and were rejected by a majority of the Court.⁵ We found that with one "limited exception" the jurors were repeatedly warned that the statements could be used only against the particular declarant; and we held that the admissions were properly received because the Government had first produced independent proof that a conspiracy existed, and also...