U.S. v. Smaldone

• Decision Date: 09 November 1976
• Docket Number: No. 75-1959,75-1959
• Citation: 544 F.2d 456
• Parties: UNITED STATES of America, Defendant-Appellee, v. Eugene L. SMALDONE, Jr., Plaintiff-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 456

544 F.2d 456

UNITED STATES of America, Defendant-Appellee, v. Eugene L. SMALDONE, Jr., Plaintiff-Appellant.

No. 75-1959.

United States Court of Appeals Tenth Circuit.

Submitted Oct. 15, 1976.

Decided Nov. 9, 1976.

Edward W. Nottingham, Jr., Asst. U. S. Atty. (James L. Treece, U. S. Atty., Denver, Colo., on the brief) for defendant-appellee.

Alan Y. Cole, Washington, D.C. (Walter H. Fleischer, Washington, D.C., on the brief) of Cole & Groner, Washington, D.C., for plaintiff-appellant; James M. Shellow, Milwaukee, Wis., and Peter H. Ney, Englewood, Colo., of counsel.

Before BARRETT, BREITENSTEIN and DOYLE, Circuit Judges.

BARRETT, Circuit Judge.

Eugene L. Smaldone, Jr. (Smaldone) appeals the denial of his habeas corpus motion under 28 U.S.C. § 2255 to vacate and set aside his conviction and sentence. Smaldone is presently incarcerated in the federal penitentiary in Leavenworth, Kansas.

Smaldone was indicted and tried in the United States District Court for the District of Colorado in 1972. The jury found him guilty of a conspiracy to import cocaine in violation of 21 U.S.C. § 963. He was thereafter sentenced to ten years imprisonment. His conviction was affirmed on appeal. 484 F.2d 311 (10th Cir.1973). His application for writ of certiorari was denied by the United States Supreme Court. 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974).

The details of the evidence presented in support of Smaldone's conviction on the conspiracy charge are fully set out in the opinion reported in 484 F.2d 311, supra, and will not be repeated here. The crux of the conspiracy charge and the evidence in support of Smaldone's conviction thereof is:

Commencing in April of 1972, Smaldone visited with one Larry Merkowitz, a pharmacist, in Aurora, Colorado, and thereafter Smaldone and Merkowitz put up approximately $9,750.00, each, under an agreement to purchase cocaine in Peru to be delivered and sold in the United States. The plan called for Craig Mundt, Ronald Greenspan and Ronald Nocenti to travel to Peru, purchase the cocaine and then smuggle it into the United States. Smaldone delivered his $9,750.00 to Nocenti on May 11, 1972. Mundt and Greenspan were arrested and detained by Peruvian authorities. Nocenti, however, returned from Peru to Denver on May 29, 1972. Merkowitz first met Nocenti, who delivered a briefcase to him. Thereupon, Merkowitz was arrested. Nocenti, a Government informer, contacted Smaldone. Shortly thereafter, Smaldone met with Nocenti at the Sheraton Motor Inn in Denver, where Smaldone accepted a packet later determined to contain cocaine. Smaldone, under Government surveillance, was arrested there.

In his habeas corpus proceeding as authorized pursuant to 28 U.S.C. § 2255, Smaldone moved to set aside his conviction and sentence on the following grounds, each of which were denied by the District Court and each of which are presented here as the issues on appeal, to-wit: (1) that the failure of the Government to produce a Report of interviews by the Bureau of Narcotics and Dangerous Drugs (BNDD) of a key Government witness (Nocenti), which Report contained evidence favorable to Smaldone and tended to discredit Nocenti, violated Smaldone's right of due process of law under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) that the Report of interviews by the BNDD of Nocenti was producible under the Jencks Act, 18 U.S.C. § 3500, and (3) that the Government's action in remaining silent when the question of the existence of the BNDD Report of interviews with Nocenti was raised and when the Government was aware of the false nature of Nocenti's trial testimony requires a vacation of the conviction and sentence in that the action denied Smaldone a fair trial.

I.

Smaldone alleges that he was denied due process of law in violation of the mandates of Brady v. Maryland, supra, by reason of the failure of the Government to produce for his use at trial the Report, consisting of notes of an interview had between BNDD Agent Farabaugh and Nocenti March 1, and 6, 1972, on the grounds that the notes constitute an exculpatory statement.

The trial court found that the Farabaugh notes have no relation to Nocenti's testimony at Smaldone's trial, are not exculpatory in nature and do not impeach Nocenti's testimony given at Smaldone's trial. We agree.

Brady held that suppression by the Government of evidence favorable to the accused, upon request for disclosure, violates the accused's due process of law where the evidence is material either to guilt or punishment, and this irrespective of the good faith of the Government. In United States v. Harris, 462 F.2d 1033 (10th Cir.1972), we interpreted Brady to stand for the rule that the ". . . suppression, inadvertent or not, by the government of evidence favorable to the defense and affecting the credibility of a key prosecution witness may result in such inherent unfairness as to be violative of due process." Ibid. at 1034. In United States v. Miller, 499 F.2d 736 (10th Cir.1974), we interpreted Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972) as holding that the Brady rule is applicable "only when the following factors exist: (a) suppression by the prosecution after a request by the defense; (b) the evidence's favorable character for the defense; and (c) the materiality of the evidence." Ibid. at 743. In United States v. Brumley, 466 F.2d 911 (10th Cir.1972), cert. denied, 412 U.S. 929, 93 S.Ct. 2755, 37 L.Ed.2d 156 (1973), we held that a defendant's due process rights are not violated where the evidence which was not produced does not actually benefit the defendant's case.

Nocenti testified at trial that he had known Smaldone since 1968. Smaldone testified that his business and occupation was that of a gambler and that he had been a gambler some twelve years and had been convicted of gambling activities. The trial court observed that in light of Smaldone's criminal record, it was nothing unusual "in the fact that Mr. Smaldone was the subject of conversation at the Farabaugh interview, since Nocenti had known him since 1968." (R., Vol. IV, p. 67.) The trial court then outlined, in summary fashion, the Report of BNDD from the Farabaugh notes (this is the report in question) relating to conversations at the March 1 and 6 interviews when Nocenti was "debriefed" concerning his knowledge of drug trafficking and other illegal activities in the Denver area. Smaldone contends that withholding the Report was violative of his due process rights because: "If the jury believed Nocenti they could reasonably have concluded that (Smaldone) had joined the conspiracy. If Nocenti was lying and had actually given (Smaldone) the envelope under the pretense that it contained money to be given to Tomeo, as (Smaldone) testified, the jury would have no alternative but to find (Smaldone) was 'set up' by Nocenti for a crime which (Smaldone) did not commit. The suppressed BNDD Report showed Nocenti's discussion of the Smaldones at the outset of his relationship with the BNDD, and long before (Smaldone's) involvement in the alleged conspiracy . . . It further established Nocenti's indebtedness to Tomeo, and thereby materially supported Smaldone's testimony that when Nocenti handed him the envelope, Nocenti stated that it contained money for Tomeo." (Brief of Appellant, pp. 14, 15.)

The same issue as above presented was previously urged by Smaldone on his prior direct appeal to this Court and rejected. This Court sustained the trial court's refusal to permit the defense to question Nocenti on cross-examination as to whether, prior to May 31, 1972, he had borrowed money from Mike Tomeo. We rejected Smaldone's contention that the questioning was material to issues in the case.

We concur in the trial court's interpretation of the BNDD Report. It says contrary to Smaldone's claim here that Nocenti informed Farabaugh that he (Nocenti) ". . . borrowed $1,000.00 from Smaldone through Michael Tomeo, a known associate of Smaldone." The court did not err in ruling that the BNDD Report Farabaugh notes have no relation to Nocenti's trial testimony. In further support of the correctness of the trial court's ruling, we observe that at trial both Smaldone and Tomeo testified that Nocenti was indebted to Tomeo and that the Government did not present evidence disputing the existence of such a loan. Smaldone's further trial testimony was that when Nocenti handed him the envelope, Nocenti stated that it contained the money he owed Tomeo on the loan, which he requested Smaldone to deliver to Tomeo. Certainly, under all of the circumstances of the record, it cannot be contended that Smaldone was in anywise prejudiced by non-disclosure of the BNDD Report. The Report simply does not dispute Nocenti's trial testimony, nor does it in anywise corroborate Smaldone's and Tomeo's trial testimony going to the central defense theory of the case. The issue was clearly before the jury. It involved a credibility issue, pure and simple. It requires more than a stretch of the imagination in fact it requires guess, conjecture and speculation to fathom how the BNDD Report relating to Nocenti's alleged loan from Smaldone could in anywise corroborate the testimony given by Smaldone and Tomeo that Nocenti represented to Smaldone that the envelope containing the cocaine instead contained the moneys Nocenti owed to Tomeo which he (Nocenti) desired to have Smaldone deliver to Tomeo in repayment. In its best light, the loan reference in the BNDD Report is ambiguous and certainly the trial testimony would not have enlightened the jury with respect thereto.

II.

Smaldone contends that the trial court erred in denying his motion in that the BNDD Report above referred to was producible under and by virtue of the Jencks Act, 18 U.S.C. § 3500.

The trial court cited the pertinent portions of 18 U.S.C. § 3500(b), to-wit:

(b) After a witness called by the United States has testified on direct...