United States v. Aviles

• Decision Date: 01 May 1961
• Citation: 197 F. Supp. 536
• Parties: UNITED STATES of America v. Alfredo AVILES et al., Defendants.
• Court: U.S. District Court — Southern District of New York

197 F. Supp. 536

UNITED STATES of America v. Alfredo AVILES et al., Defendants.

United States District Court S. D. New York.

May 1, 1961.

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Robert M. Morgenthau, U. S. Atty., Jerome J. Londin, Executive Asst. U. S. Atty., New York City, Herbert B. Greene, New York City, Ezra H. Friedman, Gerald E. Paley, Asst. U. S. Attys., Brooklyn, N. Y., of counsel, for plaintiff.

Edward Bennett Williams, Washington, D. C., Wilfred L. Davis, New York City, Robert L. Weinberg, Washington, D. C., of counsel, for defendant Vito Genovese.

Roy L. Reardon, New York City, for defendant Charles Barcellona.

Albert J. Krieger, New York City, for defendants Charles DiPalermo & Joseph DiPalermo.

Maurice Edelbaum, New York City, for defendant Natale Evola.

Davis & Krieger, New York City, Wilfred L. Davis, Albert J. Krieger, New York City, of counsel, for defendant Vincent Gigante.

Abraham Brodsky, New York City, for defendants Nicholas Lessa & Daniel Lessa.

Henry K. Chapman, New York City, Irving Rader, New York City, of counsel, for defendant Rocco Mazzi.

David Schwartz, New York City, for defendant Carmine A. Polizzano.

Allen S. Stim, New York City, for defendant Ralph Polizzano.

Herbert S. Siegal, New York City, for defendant Salvatore Santora.

BICKS, District Judge.

Vito Genovese, Carmine A. Polizzano, Ralph Polizzano, Charles Barcellona, Natale Evola, Salvatore Santora, Rocco Mazzie, Vincent Giganti, Nicholas Lessa, Daniel Lessa, Joseph DiPalermo and Charles DiPalermo, move pursuant to Rule 33 of the Fed.R. of Crim.Proc., 18 U.S.C.A. for a new trial.

These defendants were charged in a one count indictment, Criminal 156-157, with conspiracy to violate the narcotics laws, 21 U.S.C.A. §§ 173, 174, and were tried before this court and a jury from January 5, 1959 through April 3, 1959, the jury returning a verdict of guilty as to each of the movants.

An appeal was taken by petitioners from their judgments of conviction and in each case the convictions were unanimously affirmed. United States v. Aviles, 274 F.2d 179, 2 Cir., 1960. The Supreme Court denied certiorari. Evola v. United States, 1960, 362 U.S. 974, 982, 80 S.Ct. 1057, 4 L.Ed.2d 1009.

Hearings were held before this court on these motions. Petitioners have put forward certain grounds which they contend entitle them to a new trial. These are, first, alleged recantations of trial testimony by the principal government witness; second, statements at the hearing on these motions allegedly inconsistent with testimony adduced at the trial; third, alleged new extrinsic evidence with respect to aspects of the main government witness' trip to Las Vegas; fourth, alleged concealment at the trial of a rent record in the possession of the government; fifth, alleged post trial perjury totally discrediting the trial testimony of the main government witness; and sixth, alleged spoliation of government agents' notes in violation of the Jencks Act, 18 U.S.C.A. § 3500.

At the outset there is presented the question of the applicable rule for determining whether alleged post-trial recantations should be the basis for the granting of a new trial. Rule 33 of the Fed.R. of Crim.Proc. broadly provides that "the court may grant a new trial * * * if required in the interest of justice." The cases have amplified the general language of the Rule.

In general the federal courts have applied the Berry rule¹ which requires an applicant for a new trial on the ground of newly discovered evidence to show the following elements:

"(a) The evidence must be in fact, newly discovered, i. e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal." Johnson v. United States, 32 F.2d 127, 130, 8 Cir., 1929.

However, a special rule is applied where an alleged recantation of trial testimony is involved or where it is proven that false testimony was given at the trial. Under the latter rule—commonly known as the Larrison² rule—a new trial should be granted where:

"(a) The court is reasonably well satisfied that the testimony given by a material witness is false.

"(b) That without it the jury might have reached a different conclusion.

"(c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial." United States v. Hiss, D.C. S.D.N.Y.1952, 107 F.Supp. 128, 136, affirmed 2 Cir., 1953, 201 F.2d 372, certiorari denied 1953, 345 U.S. 942, 73 S.Ct. 830, 97 L.Ed. 1368.

The Larrison test has been applied by the Court of Appeals for this Circuit United States v. Troche, 2 Cir., 1954, 213 F.2d 401 and by this court United States v. Flynn, D.C.S.D.N.Y.1955, 130 F.Supp. 412, 413; United States v. Hiss, supra.

Several Alleged Recantations.

At the hearings on these motions counsel for the petitioner Genovese introduced evidence of several purported recantations of Nelson Cantellops, the principal government witness at the trial. At the outset, it is clear from a perusal of the transcript of this hearing that Nelson Cantellops categorically denied the veracity and efficacy of each and every supposed recantation of trial testimony, and he reaffirmed his trial testimony. The petitioners do not deny this but attempt to urge upon this Court that the statements made by Nelson Cantellops in the several alleged recantations were true, while the retractions of these at the hearing were false. The circumstances surrounding each alleged recantation incline the Court to the view that they were the result of coercion, bribery and misdealing and, therefore, entirely unworthy of belief.

For convenience the alleged recantations of trial testimony may be described as, first, the Mount Carmel Church episode; second, the July 20th episode and the July 22nd episode and, finally, the Frasca episode.

Mount Carmel Episode.

Between the 1st and the 15th of January, 1960, Nelson Cantellops received phone calls from unidentified callers to the effect that he would be paid money if he recanted certain parts of the testimony given by him on the trial of this case. Ultimately, John Ormento, one of the defendants named in the indictment, who was a fugitive at the time of the trial, made a call and threatened Cantellops that unless Cantellops agreed to go along with Ormento's plan, all would not go well for him. This threat was complemented by the statement of Ormento that Cantellops would receive $3,000 as a down payment with up to $30,000 to follow if Cantellops would agree to alter his trial testimony in the manner and in the particulars dictated by Ormento.

About January 20th or January 22nd Ormento met Cantellops at a bar on Tremont Avenue. A second meeting was held on Sunday, January 24th at the My Good Neighbor Restaurant. At these meetings Ormento asked Cantellops to make a recantation at a meeting to be held in the rectory of the Mount Carmel Church. Ormento furnished the statement that he wished Cantellops to make. No part of the proposed statement was suggested by Cantellops.

On Sunday, January 24, 1960 Herbert S. Siegal³ received a phone call from John Ormento in which Mr. Ormento allegedly asked Mr. Siegal to assist Ormento in determining whether a Puerto Rican man with whom Ormento was dealing was in fact Nelson Cantellops. Mr. Siegal allegedly stated to Ormento that he did not wish to assume the "responsibility" himself and that he would call Mr. Amadeo L. Lauritano to assist him in making the identification. Mr. Lauritano⁴ did not represent a defendant tried with these petitioners although he was present during portions of the trial and observed Nelson Cantellops on the witness stand.

Mr. Siegal met Mr. Lauritano and John Ormento on 149th Street in the Bronx near or in front of the Lauritano Restaurant. The three agreed that after Mr. Siegal completed some errands, they would meet in the parking lot of the Howard Johnson's Restaurant, 138th Street and Bruckner Boulevard in the Bronx.

After the meeting in the parking lot Mr. Ormento rented a car from a rental agency nearby. Immediately thereafter, Ormento, driving his rented car, followed by Mr. Lauritano and Mr. Siegal in another car drove to the My Good Neighbor Restaurant in the East Bronx. Mr. Ormento's rented car stopped in front of the restaurant while the car in which Mr. Siegal and Mr. Lauritano were riding passed the Ormento vehicle, made a U turn, and parked across the street. Mr. Ormento entered the restaurant. Mr. Siegal and Mr. Lauritano left their vehicle, crossed the street and walked slowly by the front of the restaurant looking inside allegedly in order to identify the Puerto Rican man who Ormento suspected to be Nelson Cantellops.⁵

Mr. Lauritano and Mr. Siegal then had a sandwich and returned to walk by the restaurant a second time for purposes of making the alleged identification. Mr. Siegal testified that Mr. Lauritano and he were unable to identify the man sitting with John Ormento and that although they felt that there was nothing to fear and there was every reason to make an absolute identification, they did not wish to appear obvious and, therefore, did not enter the restaurant. Mr. Lauritano and Mr. Siegal then returned to the car rental agency in the Bronx where they waited for Mr. Ormento's return.

On or about the next day Ormento called Mr. Siegal and told Mr. Siegal that he had made an arrangement whereby Cantellops would go to the Mount Carmel Church to make a recantation. Ormento asked Mr. Siegal to be present to "take" the statement. Mr. Siegal was advised by a later phone call that Ormento or another had made an arrangement with Bishop Perricone whereby Cantellops would make his...