United States v. Aviles

• Decision Date: 16 October 1964
• Docket Number: No. 370,Docket 27377.,370
• Citation: United States v. Aviles, 337 F.2d 552 (2nd Cir. 1964)
• Parties: UNITED STATES of America, Appellee, v. Alfredo AVILES, Charles Barcellona, Charles Di Palermo, Joseph Di Palermo, Natale Evola, Vito Genovese, Vincent Gigante, Daniel Lessa, Nicholas Lessa, Rocco Mazzie, Carmine Polizzano, Ralph Polizzano, and Salvatore Santora, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

337 F.2d 552 (1964)

UNITED STATES of America, Appellee, v. Alfredo AVILES, Charles Barcellona, Charles Di Palermo, Joseph Di Palermo, Natale Evola, Vito Genovese, Vincent Gigante, Daniel Lessa, Nicholas Lessa, Rocco Mazzie, Carmine Polizzano, Ralph Polizzano, and Salvatore Santora, Defendants-Appellants.

No. 370, Docket 27377.

United States Court of Appeals Second Circuit.

Argued April 16, 1964.

Decided October 16, 1964.

Robert M. Morgenthau, U. S. Atty., Southern District of New York (Robert J. Geniesse, Michael W. Mitchell, Paul R. Grand, John S. Martin, Jr., David M. Dorsen, Asst. U. S. Attys., of counsel), for appellee.

Maurice Edelbaum, New York City, for appellant Evola.

Albert J. Krieger, New York City, for appellants Charles Di Palermo and Joseph Di Palermo.

Edward Bennett Williams, Robert L. Weinberg, Washington, D. C., Wilfred L. Davis, New York City, for appellant Genovese.

Wilfred L. Davis, New York City, for appellant Gigante.

Henry K. Chapman, New York City, for appellants Rocco Mazzie and Nicholas Lessa.

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

Roy L. Reardon, New York City, for appellant Barcellona.

Herbert S. Siegal, New York City, for appellant Santora.

Before WATERMAN, MOORE and MARSHALL, Circuit Judges.

WATERMAN, Circuit Judge.

When this appeal was first before us, we affirmed the orders of Judge Bicks and Judge Murphy denying defendants' motions for a new trial. Our opinion is reported at 315 F.2d 186 (1963). Subsequently the Supreme Court granted certiorari, vacated our judgment, and remanded the case to us for reconsideration. Evola v. United States, 375 U.S. 32, 84 S.Ct. 24, 11 L.Ed.2d 106 (1963). In view of the importance of the case we authorized the parties to file additional briefs and to present further oral argument. Having studied with great care the unusually helpful material furnished to us by both sides, we adhere to our original decision.

For the sake of convenience, we repeat in part the facts of this case as set forth in our former opinion:

"After a three months\' jury trial in the Southern District of New York, appellants were convicted, on April 17, 1959, of conspiracy to violate federal narcotic laws, 21 U.S.C. §§ 173, 174. Their convictions were affirmed on appeal to this court, 274 F.2d 179, and the Supreme Court denied certiorari, Evola v. United States, 362 U.S. 974, 982, 80 S.Ct. 1057, 1058, 1059, 1068, 1071, 1073, 4 L.Ed.2d 1009, 1010, 1015, 1016, rehearing denied, Genovese v. United States, 363 U.S. 858, 80 S.Ct. 1610, 4 L.Ed.2d 1739.

"On August 26, 1960, appellants moved in the district court for a new trial, Rule 33, Fed.R.Crim.P., and put forth, as grounds for their motions: (1) alleged recantations of trial testimony by the principal government witness, Nelson Cantellops; (2) statements by Cantellops at the hearing on the motions for a new trial which were allegedly inconsistent with his original testimony; (3) allegedly new extrinsic evidence tending to establish Cantellops\' perjury in his trial testimony concerning a certain trip to Las Vegas, Nevada; (4) alleged concealment at the trial of a rent record in the possession of the Government; (5) alleged post trial statements by Cantellops which tended to discredit his trial testimony; (6) alleged spoliation of notes of federal Narcotics Agents Rowan, Consoli, and Muglia, in violation of the Jencks Act, 18 U.S.C. § 3500; and (7) failure of the Government to make available to the trial court certain interview notes of Assistant United States Attorney Donald H. Shaw, which notes were allegedly producible under the Jencks Act, 18 U.S.C. § 3500.

"After extended hearings, Judge Bicks, who had presided at the original trial, denied appellants\' motions insofar as they rested upon grounds 1 through 6 set forth above. 197 F.Supp. 536. He reserved decision with respect to the Shaw interview notes, indicating his intention to take further testimony regarding this issue. Due to the illness of Judge Bicks, however, the contemplated voir dire examination was not held. Judge Murphy was subsequently assigned to conduct the hearing and make a determination as to the ground upon which Judge Bicks had reserved decision. On December 22, 1961, Judge Murphy denied the motions for a new trial. 200 F.Supp. 711.

"From these orders below adverse to them appellants now prosecute this consolidated appeal claiming that the grounds set forth above are individually and collectively sufficient to entitle them to a new trial under Rule 33, Fed.R.Crim.P. As to the grounds 1 through 6 set forth above, we affirm the order below on the careful opinion of Judge Bicks. As to the Shaw interview notes, we affirm the order of denial below for the reasons set forth hereafter.

* * * * * *

"In ruling on appellants\' motions, Judge Murphy separated the Shaw materials into three groups:

"(1) Materials which were not `substantially verbatim recitals\' of Cantellops\' statements. Into this group were placed Shaw\'s `chronology of facts,\' together with certain of Shaw\'s `original notes and assorted miscellany.\' Ruling that these materials would not have been found producible under 18 U.S.C. § 3500 had they been made available for the court\'s inspection during the original trial, Judge Murphy concluded that their nonproduction was not prejudicial to appellants\' interests. See Rosenberg v. United States, 360 U.S. 367, 370, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959). We cannot say that Judge Murphy\'s findings with respect to these materials were erroneous.

"(2) Materials which were `probably Jencks\' statements.\' Judge Murphy ruled that the nonproduction of this second group of materials, into which was placed `the great majority\' of Shaw\'s original interview notes, was nonprejudicial to appellants on the ground that `virtually their entire contents\' `corresponded with the grand jury testimony of Cantellops which was turned over to the defense.\'

"(3) Notes which `most assuredly should have been produced pursuant to § 3500.\' This group consisted of handwritten interview notes dated October 10 and 11, 1957. Although these notes contained new impeaching information not otherwise available to appellants, Judge Murphy ruled that nonproduction of these notes did not prejudice defendants\' interests, in that defendants\' cross-examination of Cantellops was not `unduly restricted\' thereby: * * *." 315 F.2d 186, 188-189.

Judge Murphy ordered that the third group of notes be turned over to the defendants for purposes of the appeal, and later, in response to an order of this court, he ordered that the second group be turned over as well. On the appeal, however, we ruled that defendants had not been entitled to either group of notes at the original trial. We based our decision on the ground that the notes were not producible "statements" within the Jencks Act definition of that term, 18 U.S.C. § 3500(e).¹ We therefore found it unnecessary to decide whether defendants had been prejudiced by the government's failure to produce the notes at the original trial. A request by the defendants for a rehearing, alleging various errors in our decision, was denied in an order dated April 10, 1963.

In opposing defendants' petitions for certiorari, however, the government stated to the Supreme Court, "Under the ruling of this Court in Campbell v. United States, 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501 No. 631, O.T.1962, decided May 27, 1963, we accept Judge Murphy's findings that the Shaw notes should have been produced under 18 U.S.C. 3500." The government chose to rely entirely on the argument that defendants were not prejudiced by its failure to produce the notes. Thereafter, the Supreme Court remanded the cases to us requesting "reconsideration in light of Campbell v. United States, 373 U.S. 487 83 S.Ct. 1356, 10 L.Ed.2d 501" and "such further consideration as may be appropriate," 375 U.S. 32, 33, 84 S.Ct. 24.

Defendants argue that we should hold the government bound by the concession it made before the Supreme Court that the Shaw notes should have been produced under 18 U.S.C. § 3500(e). To do so, however, would be to ignore the Supreme Court's remand order, which requests us to reconsider our decision in the light of Campbell v. United States, and not in the light of the government's concession. The defendants also contend that, in any event, we should accord great weight to this concession by the Department of Justice, but upon remand the government has repudiated its last year's concession. We do wish to point out, however, in view of the fact that the Supreme Court heard no oral argument when it granted certiorari and forthwith remanded the cases to us, that if the government had not made its short-lived concession in the first place, the Supreme Court might have finally disposed of the appeals with a consequent saving of time and energy all around. See dissenting opinion of Justice Clark, 375 U.S. 32, 33, 84 S.Ct. 24.

Campbell v. United States, 373 U.S. 487, 83 S.Ct. 1356 (1963) (hereinafter Campbell II) involved the question of whether either notes taken by a government agent at an interview with a government witness, or the interview report compiled by the government agent from his notes which were subsequently destroyed, were producible statements within the meaning of the Jencks Act, 18 U.S.C. § 3500(e). The Supreme Court held that the findings of the district judge on this question were not to be disturbed unless clearly erroneous; and that the district judge was not clearly erroneous in finding the notes to be producible under 18 U.S.C. § 3500(e) (1) and the report to be a producible copy of the notes. In view of this result, the Supreme Court found it unnecessary to decide whether the destruction of the notes called for sanctions under 18 U.S.C. § 3500(d).

These are the rulings in the light of which we are asked to reconsider our former decision. As for the portion of the remand order requesting "such further...