Indiviglio v. U.S.

• Citation: 612 F.2d 624
• Decision Date: 17 March 1980
• Docket Number: D,No. 940,940
• Parties: John INDIVIGLIO, Petitioner-appellant, v. UNITED STATES of America, Respondent-appellee. ocket 79-2021.
• Court: U.S. Court of Appeals — Second Circuit

Page 624

612 F.2d 624

John INDIVIGLIO, Petitioner-appellant, v. UNITED STATES of America, Respondent-appellee.

No. 940, Docket 79-2021.

United States Court of Appeals Second Circuit.

Argued April 26, 1979.

Decided Nov. 26, 1979.

Certiorari Denied March 17, 1980.

See 100 S.Ct. 1326.

Frank A. Lopez, New York City, for petitioner-appellant.

Edward R. Korman, U. S. Atty., Brooklyn, N. Y., Thomas P. Puccio, Attorney-in-Charge, U. S. Dept. of Justice, Organized Crime Strike Force, EDNY, Brooklyn, N. Y. (Ellen M. Coin, Sp. Atty., Brooklyn, N. Y., of counsel), for respondent-appellee.

Before WATERMAN, FEINBERG and MANSFIELD, Circuit Judges.

WATERMAN, Circuit Judge:

The petitioner, John Indiviglio, appeals from an order entered on January 8, 1979, in the United States District Court for the Eastern District of New York (Mishler, Chief Judge) dismissing his petition brought pursuant to 28 U.S.C. § 2255 to vacate his conviction and to set aside his sentence. The judgment of conviction was entered on August 16, 1974, after trial by jury. Indiviglio was found guilty of participating in a narcotics conspiracy, in violation of 21 U.S.C. § 846, and was sentenced to a term of twelve years imprisonment and to a special parole term of five years. The judgment of conviction was affirmed without opinion by this Court on January 29, 1975. United States v. Matteo, 510 F.2d 968. Certiorari was denied, 421 U.S. 998, 95 S.Ct. 2394, 44 L.Ed.2d 665 (1975).

On May 10, 1977, Indiviglio filed the present 28 U.S.C. § 2255 petition. Indiviglio based his petition to vacate the judgment of conviction on the following four claims: (1) ineffective assistance of counsel; (2) prosecutorial suppression of exculpatory evidence; ¹ (3) admission of illegally seized evidence at his trial, in violation of the Fourth Amendment; and (4) his own alleged incompetence to stand trial due to his low intelligence, which compounded the deleterious effects attaching to his claim of ineffective assistance of counsel.

After a lengthy evidentiary hearing, the district court rejected all these claims and dismissed Indiviglio's 28 U.S.C. § 2255 petition. The district court found that the performance of Indiviglio's trial counsel satisfied constitutional standards; that Indiviglio, although classified as between "Dull-normal" and "Borderline" in intelligence, was competent to stand trial and to assist his attorney in his defense; that Indiviglio's Fourth Amendment claims had been waived by his failure to present them prior to trial in accordance with Fed.R.Crim.P. 12(b) and the principles of Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); and that, in light of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), Fourth Amendment claims are not cognizable in 28 U.S.C. § 2255 proceedings. We affirm the district court's order.

The proceedings culminating in the conviction of Indiviglio which he now challenges were initiated by an indictment brought against Indiviglio charging him and his co-defendants, Frank Breene and Thomas Matteo, with having conspired with one Frank Aguiar and others to violate the federal narcotics laws. Indiviglio and Breene were tried together; the case against Matteo was severed.

The first prosecution witness called at Indiviglio's trial was Tyler Somas, an admitted co-conspirator with a criminal record who received special consideration in return for his cooperation. Somas testified that he had been employed at Indiviglio's auto parts store beginning in 1965. Somas further testified that during the period of his employment with Indiviglio he had become involved in a narcotics business operated by Indiviglio and Matteo; that Indiviglio had set up laboratory equipment in a downstairs storage area of a building he owned, which equipment was employed by Indiviglio to manufacture synthetic heroin; that Somas believed that he was present in this storage area on one occasion and saw Indiviglio give drugs to Matteo; that Indiviglio met with Matteo and Somas to discuss the financing of a trip Indiviglio was to make to France to meet with a heroin supplier; and that Matteo had instructed Somas to obtain heroin from Indiviglio.

Finally, Somas testified regarding certain conversations he had had with Indiviglio at the latter's Long Island residence in the early part of 1971. Somas related that Indiviglio's drug business and money that Matteo owed Indiviglio were the principal topics of discussion. This portion of Somas's testimony was partially corroborated by his wife, Fay Somas. Mrs. Somas testified that she was present at Indiviglio's Long Island residence on one of these occasions and heard her husband and Indiviglio discussing Matteo, the millions of dollars Indiviglio claimed to have made from his drug business, and his use of foreign cars to smuggle heroin into the country.

The prosecution also called Frank Aguiar, one of the persons named in the indictment, as a witness. Aguiar testified that he had received heroin from both Tyler Somas and James McCormick, with the latter indicating to Aguiar that he in turn had received the heroin from Indiviglio.

In addition, the prosecution introduced at trial numerous items of physical evidence, consisting primarily of pieces of chemical equipment and documents and letters addressed to Indiviglio. ² All of these items were seized during a search of Indiviglio's Long Island residence, which search was prompted indirectly by a Suffolk County police officer's discovery of Thomas Matteo, armed, severely wounded, and in possession of an attache case containing approximately $350,000, on the premises. We will discuss the circumstances surrounding the search of Indiviglio's residence and the seizure of the physical evidence more fully in connection with our treatment of Indiviglio's Sixth Amendment claims, Infra.

Finally, as part of the prosecution's rebuttal evidence against Breene, a pair of Drug Enforcement Administration (DEA) agents testified that they saw Indiviglio and Breene in Beth's Bar & Grill on May 24, 1974.

In his petition, Indiviglio claimed that his Sixth Amendment rights were violated by the alleged egregious incompetence of his trial counsel, Ludwig Abruzzo. United States v. Wight, 176 F.2d 376 (2d Cir. 1949), Cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950), first enunciated the standard employed in this Circuit for determining the adequacy of representation by counsel:

(U)nless the purported representation by counsel was such as to make the trial a farce and a mockery of justice, mere allegations of incompetency or inefficiency of counsel will not ordinarily suffice as grounds for the issuance of a writ of habeas corpus . . ..

A lack of effective assistance of counsel must be of such a kind as to shock the conscience of the Court and make the proceedings a farce and mockery of justice.

Id. at 379 (footnote and citations omitted).

This Court has continued to adhere to this standard for three decades. See, e. g., Curci v. United States, 577 F.2d 815, 819 (2d Cir. 1978); United States v. Bubar, 567 F.2d 192, 201-02 (2d Cir.), Cert. denied, 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 151 (1977).

Indiviglio points to several acts and omissions at trial, which he contends demonstrate Abruzzo's incompetence: (1) inadequate cross-examination of witnesses Tyler and Fay Somas and Frank Aguiar; (2) refusal to permit Indiviglio to testify in his own behalf; (3) failure to elicit certain exculpatory and impeaching information; and (4) failure to object to the introduction of items seized pursuant to an unlawful search.

However, Abruzzo did cross-examine Tyler and Fay Somas, pointing out their long criminal records and their involvement in narcotics dealings and suggesting the existence of "deals" made with federal authorities in exchange for cooperating with the prosecution. Frank Aguiar was similarly cross-examined. Abruzzo's cross-examination of the police officer who conducted the search of Indiviglio's Long Island residence revealed the important fact that no trace of narcotics was found on the chemical equipment seized from the premises. Abruzzo called three witnesses who testified to Indiviglio's reputation for honesty and integrity in the community. Moreover, Abruzzo called an alibi witness to testify that she had seen Indiviglio at his home in Bayside at the time when the DEA agents had placed him at Beth's Bar & Grill with Breene. The remaining information that Indiviglio claims Abruzzo failed to elicit is for the most part either peripheral to the issues and of only slight impeaching value, or wholly implausible. ³ Finally, Abruzzo's failure to call Indiviglio as a witness is understandable from counsel's viewpoint, because Indiviglio wanted to testify that he had amassed the $350,000 in cash, discovered in Matteo's possession at Indiviglio's Long Island residence, from real estate transactions, and had kept it hidden in a barrel in his basement. ⁴ As Chief Judge Mishler noted below with reference to this story, "(T)hat would be pretty tough for a jury to believe."

There remains Indiviglio's claim that his counsel's failure to raise certain Fourth Amendment arguments conclusively establishes counsel's incompetence. A brief factual background is necessary in order to assess the merits of this claim.

On September 27, 1972, Lt. John T. Thomsen of the Suffolk County Police Department responded to a call reporting that shots had been fired at an address subsequently determined to be Indiviglio's Long Island residence. Upon Thomsen's arrival he looked in the back window of the house and saw a pair of legs sticking out from behind a refrigerator. Thomsen broke the window, entered the house, and found Thomas Matteo lying face down on the floor with five bullet wounds in his back. Matteo was holding a loaded revolver in his right hand, and an attache case containing approximately $350,000 was on the floor next to him.

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