Pacelli v. U.S., 96

• Citation: 588 F.2d 360
• Decision Date: 28 December 1978
• Docket Number: D,No. 96,96
• Parties: Vincent PACELLI, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 78-2064.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 360

588 F.2d 360

Vincent PACELLI, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 96, Docket 78-2064.

United States Court of Appeals,

Second Circuit.

Argued Sept. 12, 1978.

Decided Dec. 5, 1978.

Rehearing Denied Dec. 28, 1978.

Steven B. Duke, New Haven, Conn., for appellant.

James P. Lavin, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., Audrey Strauss and Robert J. Jossen, Asst. U. S. Attys., New York City, of counsel), for appellee.

Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

This is an appeal from a denial of a motion to vacate sentence in the Southern District of New York, Milton Pollack, Judge. Petitioner is currently serving a sentence ¹ for violations of federal narcotics laws. The motion to vacate the sentence and convictions was filed pursuant to 28 U.S.C. § 2255. ² For reasons somewhat different from those of the district court, we affirm.

In December, 1973 petitioner Pacelli was tried before Judge Pollack and a jury on seven counts of violating federal narcotics laws, 21 U.S.C. §§ 812, 841 and 846, along with four co-defendants. These charges included one count of conspiracy to distribute narcotics and six counts of distributing narcotics. The events and actions which formed the basis of the charges will not be discussed in detail here. ³ Suffice it to say at this point that the charges involved widescale narcotics distribution operations involving at least twelve persons, and related events included the murder of one potential prosecution witness.

Pacelli was convicted of the conspiracy count and two of the substantive counts. One count was dismissed by Judge Pollack during the trial, and the jury found Pacelli not guilty of the remaining three counts. On appeal of Pacelli's convictions in 1974, this court found that the conspiracy charge was barred by the double jeopardy clause of the fifth amendment. United States v. Mallah, 503 F.2d 971 (2d Cir. 1974), Cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975), and accordingly reversed the conviction for conspiracy. ⁴ The convictions on the two substantive counts were affirmed. Mallah, supra.

In November, 1977 petitioner Pacelli filed a motion pursuant to 28 U.S.C. § 2255 to vacate the convictions on the two substantive counts. The basis of this claim is that his convictions on the substantive narcotics charges were sufficiently tainted by the "spillover" effects of the double jeopardy-barred conspiracy charge to constitute a violation of his fifth amendment rights against being placed in double jeopardy. Pacelli did not raise the issue of "spillover" double jeopardy prohibitions against the substantive counts on direct appeal of the convictions, although the issue does appear to have been raised in his petition for certiorari to the United States Supreme Court. ⁵

Judge Pollack denied the motion to vacate the convictions on the grounds that no constitutional issue was raised, and therefore no claim under § 2255 was set forth. Additionally, Judge Pollack found that the failure to raise the "spillover" issue on direct appeal constituted an "impermissible by-pass" of normal appellate procedures and thus was a waiver of petitioner's double jeopardy claims here. Finally, Judge Pollack found that claims of prejudice resulting from the joinder of the barred conspiracy charge with the substantive charges were "specious," since joinder of defendants and charges would have been allowed under Rule 8 of the Federal Rules of Criminal Procedure and substantially the same evidence submitted would have been admissible, even absent the conspiracy charge. While we do not agree with Judge Pollack that no constitutional issue was raised or that the constitutional claim was waived, we agree that there was no showing of prejudice, and therefore affirm the denial of § 2255 relief.

We turn first to an examination of the effects of Pacelli's failure to raise the "spillover" double jeopardy claims on direct review in terms of waiving those claims. Until recently, it appeared clear that a waiver of a constitutional right had to be "knowing," "intelligent," or "an intentional relinquishment or abandonment of a known right or privilege," Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

In keeping with this "high waiver standard" ⁶ which refused to infer a waiver of constitutional rights without a strong showing of such a deliberate waiver, constitutional claims were cognizable in motions under 28 U.S.C. § 2255, often even when the claims were being raised for the first time in these § 2255 motions. Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969); United States v. Loschiavo, 531 F.2d 659, 662-63 (2d Cir. 1976); Randall v. United States, 454 F.2d 1132 (5th Cir.), Cert. denied, 409 U.S. 862, 93 S.Ct. 151, 34 L.Ed.2d 109 (1972). Thus, constitutional claims were deemed waived only on a showing of "deliberate by-pass" of regular appellate channels. United States v. West, 494 F.2d 1314 (2d Cir.), Cert. denied, 419 U.S. 899, 95 S.Ct. 180, 42 L.Ed.2d 144 (1974).

On the other hand, a claim which was non-constitutional generally could not be raised on collateral review unless it alleged a "fundamental defect" resulting in "a complete miscarriage of justice," Davis v. United States, 417 U.S. 333, 345-46, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974); Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), particularly where such an issue was not raised on direct appeal. Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); United States v. Wright, 524 F.2d 1100 (2d Cir. 1975).

In recent years, the Supreme Court has seen fit to narrow the grounds on which motions for collateral relief from criminal convictions can be granted by federal courts. In Stone v. Powell, supra, 428 U.S. 465, 96 S.Ct. 3037, the Court held that a state prisoner could not be granted collateral relief in federal court where he had had a "full and fair" opportunity to litigate his fourth amendment claims in state court. In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Court rejected the Fay v. Noia test of "deliberate by-pass" as applied to a state prisoner who had not complied with a procedural rule requiring assertion of his fifth amendment claim prior to trial, holding that he was entitled to relief under 28 U.S.C. § 2254 ⁷ only upon a showing of cause as to why he had not raised the issue before and actual prejudice resulting from the alleged constitutional error. This applied to the states a test set out for certain federal cases in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973). ⁸ Courts have also inferred a tactical or strategic decision in the failure to raise some issues below, and have bound defendants to these "tactical" decisions of counsel by refusing collateral relief. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); United States v. West, supra, 494 F.2d at 1315.

The standard by which to judge a possible waiver by Pacelli in his failure to raise "spillover" double jeopardy claims on direct review may turn, then, on whether his claim is "constitutional." If his claim is not a constitutional one, then his failure to raise it earlier may preclude collateral relief. Stone v. Powell, supra, 428 U.S. at 477 n. 10, 96 S.Ct. 3037; Kaufman v. United States, supra, 394 U.S. at 220 n. 3, 89 S.Ct. 1068; United States v. Wright, supra, 524 F.2d 1100. If the claim is a constitutional one, then a higher standard of waiver will apply. ⁹ We are of the belief that petitioner's claim based on the spillover effects of the double jeopardy-barred charge is a constitutional claim and the higher standard applies.

The government contends here that any prejudice which results from the joinder of a jeopardy-barred conspiracy charge with other substantive charges is a mere "evidentiary error" not of constitutional proportions, citing Benton v. Maryland, 395 U.S. 784, 798, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). ¹⁰ While Benton does not clarify what is meant by characterizing the prejudicial spillover effects as "evidentiary," there is no indication that such a characterization was intended to preclude the notion that the errors involved were of a constitutional nature. ¹¹

Additionally, the decisions in Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) and United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (2d Cir. 1965), Cert. denied, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667 (1966), though distinguishable on their facts from this case, ¹² suggest that the possibility of significant prejudice resulting from the joinder of a jeopardy-barred charge with a permissible one Is a problem of constitutional dimensions. ¹³ The fact that the jury in this case was given a Pinkerton ¹⁴ instruction which tied the barred conspiracy charge to the substantive counts on which Pacelli was convicted ¹⁵ establishes the possibility of spillover prejudice sufficient to raise a constitutional claim under Price and Hetenyi.

Even though Pacelli's claim does raise a constitutional issue, it would still be possible to find a waiver of that constitutional claim based on delay or by-pass. Though the doctrine of laches is not specifically applicable to motions under § 2255, ¹⁶ delays and failure to raise issues can be taken into account by a court ruling on a motion for collateral relief. ¹⁷

Pacelli's failure to raise the issue of "spillover" double jeopardy claims on direct appeal or in a petition for rehearing is troubling. We do not give much credence to petitioner's contention that he did not have to raise such an issue because it was purely one of "remedy" for the court to deal with after it found the conspiracy charge to be barred. ¹⁸ There is an...