United States v. Abbinanti
| Decision Date | 12 November 1964 |
| Docket Number | Docket 28978.,No. 135,135 |
| Citation | 338 F.2d 331 |
| Parties | UNITED STATES of America, Appellee, v. Joseph ABBINANTI, Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
John T. Curtin, U. S. Atty., Western District of New York, Buffalo, N. Y., on the brief, for appellee.
Joseph Abbinanti, pro se.
Before LUMBARD, Chief Judge, and HAYS and MARSHALL, Circuit Judges.
Abbinanti appeals from the district court's denial of his application under 28 U.S.C. § 2255 to set aside his 1961 conviction in the Western District of New York on 83 counts of violating the federal narcotic laws by the purchase, possession and sale of heroin, 21 U.S.C. § 174, and numerous violations of the tax statute, 26 U.S.C. § 4704, in connection therewith. Following his conviction, Judge Henderson, on November 20, 1961, sentenced Abbinanti to 6 years imprisonment on each count, the sentences to run concurrently.
Throughout all stages of the proceedings in the district court Abbinanti was represented by counsel. After filing timely notice of appeal from his conviction, Abbinanti withdrew his appeal in April 1962.
It was not until December 2, 1963 that Abbinanti commenced this proceeding seeking to set aside his conviction on the claim that one of the principal witnesses had committed perjury and that numerous errors were committed at trial. Although this court granted permission to appeal in forma pauperis and assigned counsel, Abbinanti later moved to dismiss his counsel and thereafter he submitted his own brief on this appeal, and at the same time he moved for admission to bail. As Abbinanti's incarceration prevents his appearance before us, we consider the case on the briefs and the record, without argument, according to our custom in such cases.
Abbinanti lays great stress on our decision in United States v. DeDominicis, 332 F.2d 207 (2 Cir. 1964), as he and DeDominicis were named in the same indictment. However, Abbinanti and DeDominicis were tried separately and the substantial errors committed during the trial of DeDominicis which led us to reverse his conviction were not committed at Abbinanti's trial.1
The minutes of Abbinanti's short trial disclose overwhelming evidence of his guilt. Albert Moreton testified that almost daily for a period of about six weeks from May 29, 1959 he sold $100 worth of heroin to Abbinanti. Moreton had obtained the drug from Canada and mixed it with milk sugar on the glass of a picture frame in his bedroom in Buffalo. This frame was later found by a customs agent and there was evidence that traces of heroin were still on the frame at that time. The amount of heroin which Moreton sold to Abbinanti daily was enough to fill about one hundred capsules. Moreton was usually paid in cash, occasionally by check, and on two occasions Abbinanti gave him a gun. One of these guns which Moreton gave to a man named Leroy Mansell was identified and placed in evidence at the trial. In addition, one Frank Crupe, Jr., who during the times in question was...
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