Mengarelli v. United States, Civ. No. LV 1573.

• Decision Date: 26 March 1971
• Docket Number: Civ. No. LV 1573.
• Parties: Albert MENGARELLI, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Nevada

325 F. Supp. 358

Albert MENGARELLI, Petitioner, v. UNITED STATES of America, Respondent.

Civ. No. LV 1573.

United States District Court, D. Nevada.

March 26, 1971.

Bart M. Schouweiler, U. S. Atty., Alan B. Andrews, Asst. U. S. Atty., Las Vegas, Nev., for respondent.

Carl F. Martillaro, Carson City, Nev., for petitioner.

ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT THE SENTENCE

HAUK, District Judge.

Petitioner is in federal custody pursuant to his conviction by a jury before the Honorable Bruce R. Thompson, Judge. The relevant facts are as follows:

Petitioner was convicted on the 20th day of February, 1969, of conspiracy to evade or defeat the federal excise tax imposed upon wagers (18 U.S.C. § 371; 26 U.S.C. § 4401 et seq.) and thereafter sentenced by Judge Thompson to one year in prison and a $10,000.00 fine. On May 12, 1970, his appeal was denied in Mengarelli v. United States, 426 F.2d 985 (9th Cir. 1970). Certiorari was denied by the Supreme Court. Petitioner's Motion for Modification of Sentence was denied by Judge Thompson on January 27, 1971. On February 5, 1971, Petitioner was ordered to surrender for execution of his sentence and began serving same.

Petitioner filed the matter presently before the Court on February 12, 1971. Entitled "Petition for Habeas Corpus", it was ordered by the trial judge that this motion be treated as a Motion to Set Aside, Vacate, or Correct Sentence pursuant to 28 U.S.C. § 2255. As Judge Thompson was unable to hear the motion because of prior commitments, it was assigned to this Court.

Petitioner contends:

1. That his trial attorney, Morton Galane, rendered inadequate and ineffective assistance before, during, and after trial.

2. That Petitioner's conviction was based upon illegally obtained evidence.

After reviewing the Motion to Reduce, Vacate, or Correct Sentence, the Government's Response thereto, the oral argument of both sides, and other evidence presented in open Court, and this Court being duly advised in the premises,

It is therefore ordered that the Motion to Set Aside, Reduce, or Correct Sentence be and the same hereby is denied for the following reasons:

I. PETITIONER HAS NOT BEEN DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

Petitioner has presented various arguments to this Court which, he contends, point to the inadequate assistance of counsel, to wit:

a. Failure to raise certain pre-trial motions;

b. Lack of an effective trial defense;

c. Receiving trial help from a Mr. John Holden.

a. This Court is of the opinion that it does have the discretion to review the question whether the representation of counsel at trial was so inadequate as to warrant the granting of a motion under 28 U.S.C. § 2255. In so doing, this Court may review all the facts, and may even reexamine the question of an illegal search and seizure, even though it has already been ruled upon adversely to the Petitioner by the Court of Appeals for the Ninth Circuit. Great weight, however, must be given to the reasoning and determination of both the trial court and the appellate court.

In so examining all the relevant evidence, this Court concludes that there was a legal seizure of Exhibit 14. The question whether there had been a timely motion to suppress Exhibit 14 is not material as the legality of the seizure has previously been decided on the merits by the trial court and the Court of Appeals.

This Court therefore concludes that...