U.S. v. Natelli

• Decision Date: 28 March 1977
• Docket Number: No. 920,D,920
• Citation: 553 F.2d 5
• Parties: UNITED STATES of America, Appellee, v. Anthony M. NATELLI, Defendant-Appellant. ocket 76-1494.
• Court: U.S. Court of Appeals — Second Circuit

Page 5

553 F.2d 5

UNITED STATES of America, Appellee, v. Anthony M. NATELLI, Defendant-Appellant.

No. 920, Docket 76-1494.

United States Court of Appeals Second Circuit.

Argued March 9, 1977.

Decided March 28, 1977.

Jed S. Rakoff, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty. S. D. N. Y., Lawrence B. Pedowitz, Asst. U. S. Atty., New York City, of counsel), for appellee.

Philip A. Lacovara, Washington, D.C. (Hughes Hubbard & Reed, Washington, D.C.; Jay K. Wright, Ronald A. Stern, Washington, D.C., John S. Martin, Jr., New York City, of counsel; Martin, Obermaier & Morvillo, New York City, on the brief), for defendant-appellant.

(Victor M. Earle, III and Cahill Gordon & Reindel, New York City; Howard J. Krongard, William E. Hegarty, Mathias E. Mone, George Wailand, New York City, of counsel), for Peat, Marwick, Mitchell & Co., amicus curiae.

Before SMITH, FEINBERG and MULLIGAN, Circuit Judges.

PER CURIAM:

The appellant Anthony M. Natelli is an accountant who was convicted in the United States District Court for the Southern District of New York of making false and misleading financial statements in a proxy statement of National Student Marketing Corporation (NSMC) in violation of section 32 of the Securities Exchange Act of 1934, 15 U.S.C. § 78ff, as well as aiding and abetting those violations, 18 U.S.C. § 2. Joseph Scansaroli, an accountant who worked under Natelli's direction, was a co-defendant. Both were convicted on November 14, 1974 after a four-week jury trial before Hon. Harold R. Tyler, Jr., then a United States District Judge. While Natelli's conviction was affirmed on appeal, Scansaroli's conviction was initially reversed, then later reinstated on the government's petition for rehearing. On Scansaroli's petition for a rehearing the original reversal and remand for a retrial was reinstated. The opinions of this court fully setting forth the facts and the law were authored by Judge Gurfein and are reported at 527 F.2d 311 (1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 175 (1976). Natelli then moved for a new trial pursuant to Fed.R.Crim.P. 33, or in the alternative for relief pursuant to 28 U.S.C. § 2255. On October 20, 1976, Hon. Richard Owen, United States District Judge for the Southern District of New York, denied the relief sought in a five-page opinion. This appeal followed.

Natelli argues that there was insufficient evidence to support his conviction. Specifically, he urges that the United States failed to establish that a letter signed by Thomas Mullen, an executive of Eastern Airlines, "committing" his company to purchase NSMC services was false and misleading and known to be such by Natelli. This collateral attack must be rejected. As found by Judge Owen, the precise issue was raised by Natelli on a motion for acquittal at the conclusion of the government's case and on a motion for a new trial after the verdict in the district court, on his appeal to this court, on his motion for rehearing as well as on the petition for a writ of certiorari. The issue was specifically considered and rejected by Judge Gurfein in his opinion for this court, 527 F.2d at 318-21. Appellant does not dispute this but argues that the rule barring a collateral attack on the disposition of issues previously litigated should yield in the interests of justice. However, the authorities relied upon such as United States v. Loschiavo, 531 F.2d 659 (2d Cir. 1976) and Robson v. United States, 526 F.2d 1145 (1st Cir. 1975) involve situations where there was an intervening change of law after the initial decision was reached. See Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). There is no such circumstance here and we find no reason to depart from the case law that once a matter has been decided adversely to a defendant on direct appeal it cannot be relitigated in a collateral attack under section 2255. Meyers v. United States, 446 F.2d 37, 38 (2d Cir. 1971); United States v. Granello, 403 F.2d 337, 338 (2d Cir. 1968), cert. denied, 393 U.S. 1095, 89 S.Ct. 878, 21 L.Ed.2d 785 (1969).

Appellant's second argument is equally unpersuasive and is analyzed in Judge Owen's opinion below. Natelli claims that the government presented an "erroneous version" of the facts to the jury in arguing that one of the indications that the so-called Eastern Airlines commitment was phony or fraudulent was its sudden production at 3 a. m. on the morning of August 15, 1969 in the office of a printer when Natelli deleted the Pontiac commitment and substituted Eastern in the nine-months earnings statement. The incident and its patently irregular circumstances are fully discussed in Judge Gurfein's opinion under the heading "B. The False Nine-Months Earnings Statement "...