Massimo v. United States
Decision Date | 10 February 1972 |
Docket Number | No. 71 Civ. 1868.,71 Civ. 1868. |
Parties | Matthew MASSIMO, Petitioner, v. UNITED STATES of America, Respondent. |
Court | U.S. District Court — Southern District of New York |
Walter L. Stratton, Donovan, Leisure, Newton & Irvine, New York City, for petitioner; Paul A. Crotty, New York City, of counsel.
Whitney North Seymour, Jr., U. S. Atty., by Jay S. Horowitz, New York, N. Y., for respondent.
Petitioner Matthew Massimo was convicted by this court on twenty-three counts of using the mails to defraud, and on one count of conspiring to do the same (18 U.S.C. §§ 1341, 1342, and 371) on March 4, 1969 after trial to the court without a jury. United States v. Catanzaro, Massimo, and Morfield, 68 Cr. 9 (S.D.N.Y. March 4, 1969) (Motley, J.) Massimo was found to have obtained credit cards fraudulently, and then used the cards to make purchases in various retail stores. He is presently serving five-year prison terms imposed on each count, to run concurrently. Massimo took a direct appeal from his conviction, the judgment below being affirmed, Judge Friendly dissenting, United States v. Massimo, 432 F.2d 324 (2d Cir. 1970). A petition for writ of certiorari was denied, 400 U.S. 1022, 91 S.Ct. 586, 27 L. Ed.2d 633 (1971).
Sentence having been imposed by this court, Massimo now moves here to vacate and set aside the sentence pursuant to 28 U.S.C. § 2255.1 His claim is that he was denied his rights under the Fifth and Sixth Amendments to the United States Constitution: 1) by the fact that agents of the government questioned him while he was in custody at a time when he was not represented by counsel, and then used a statement obtained from him under those circumstances against him at trial; and 2) by the failure of his court-appointed counsel to obtain a ruling by the court on the admissibility of the statement, this being alleged to constitute ineffective assistance of counsel.
The crux of this case is the statement made by Massimo on December 26, 1967 to a U. S. Postal Inspector, which was introduced by the government by stipulation at trial. That stipulation was to the effect that Postal Inspector Gerard A. Mailloux, if called to the stand, would testify that Massimo had confessed to certain enumerated facts constituting the elements of the crimes charged. (See Stipulation dated 1/20/69, pp. 4-5). The government's case in chief consisted of a number of stipulations and twenty-two exhibits; there were no witnesses. Massimo's defense was that he was insane at the time of the commission of the acts charged.2
Massimo raised the issue of the inadmissibility of his statement to the Postal Inspector on his direct appeal, but the majority found the record insufficient to establish his claim. 432 F.2d at 326. They nevertheless addressed Massimo's contentions as follows:
This court held a hearing on the § 2255 petition on July 2, 1971 in order to further develop the facts. The Postal Inspector, Mailloux, Massimo's trial counsel, Joseph I. Stone, and petitioner himself were called as witnesses. Based on the testimony adduced at the hearing, and the various moving papers and transcripts in United States v. Catanzaro, Massimo, and Morfield, supra, we deny Massimo's § 2255 petition to vacate and set aside his sentence and make the following findings of fact and conclusions of law.
Massimo was arrested pursuant to a warrant on December 22, 1967. He was arraigned on that day before Commissioner Bishopp, and his preliminary hearing was adjourned until December 27th. Bail was set at $10,000. Massimo, being unable to make bail, was remanded. On December 27th the preliminary hearing was further adjourned until January 3, 1968, and then until January 10th. On January 9th an indictment was filed; as a consequence, no preliminary hearing was ever held. Massimo remained in custody until January 12th when a successful application was made by his court-appointed counsel to reduce his bail.
It was not until January 12, 1968, after Massimo's first appearance before a district court judge on January 10th, that counsel Joseph Stone was appointed to represent Massimo. Massimo had been unrepresented prior to that time.
A notice of motion dated January 31st, supported by an affidavit by Massimo signed on January 25th, was filed by Stone on behalf of Massimo on February 2, 1968. No supporting memorandum of law was submitted.
A significant inconsistency between the relief requested in Stone's notice of motion, and that requested in Massimo's affidavit appended to the notice of motion, is the source of the difficulty in this case. The notice of motion sought the disclosure of certain enumerated particulars, the discovery of the report of any psychiatric examination of Massimo the government may have required, the discovery of Massimo's statements to "agents of the United States Post Office and specifically the United States Attorneys," and the return of all items taken from Massimo at the time of arrest without a search warrant "that are evidentiary in nature." It also requests that a psychiatric report be prepared on Massimo. Conspicuously absent from Stone's notice of motion is any request for suppression of Massimo's statements made to agents of the government.3
By contrast, Massimo's affidavit states at pp. 1-3 that:
"... (Emphasis added)
It is apparent that the government was aware that some additional requests had been made in Massimo's affidavit that were not contained in Stone's notice of motion, since the government discussed some of these items in its affidavit in opposition and supporting memorandum.4 However, the government papers contain no acknowledgement of that portion of Massimo's affidavit dealing with the suppression of the statement made to the Postal Inspector on December 26, 1967.5
A suppression hearing held by Judge Weinfeld on Massimo's motion on April 1st considered only the admissibility of tangible evidence seized from Massimo at the time of his arrest. No hearing was ever held on the admissibility of any of Massimo's statements.
The majority in the Court of Appeals has suggested that defense counsel may have been contemplating an insanity defense at the time he made his pretrial...
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...defendant, under all the circumstances of the trial, as to make the proceedings a `farce and mockery of justice.'" Massimo v. United States, 339 F.Supp. 519, 526 (S.D.N.Y.), aff'd, 463 F.2d 1171 (2d Cir. In the instant case, respondent has argued that the evidence of petitioner's guilt is o......
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Massimo v. United States, 868
...27 L.Ed.2d 633 (1971). Massimo then petitioned Judge Motley under § 2255. After an evidentiary hearing Massimo's petition was denied, 339 F.Supp. 519. The district court and this court both denied bail pending appeal, but this court ordered the appeal expedited, since Massimo is serving his......