United States v. Capsopa, 391

• Decision Date: 24 October 1958
• Docket Number: 392,Dockets 25385,No. 391,25386.,391
• Citation: 260 F.2d 566
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joe CAPSOPA et al., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John CAPSOTA, alias Frank Costello, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

260 F.2d 566 (1958)

UNITED STATES of America, Plaintiff-Appellee, v. Joe CAPSOPA et al., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. John CAPSOTA, alias Frank Costello, Defendant-Appellant.

Nos. 391, 392, Dockets 25385, 25386.

United States Court of Appeals Second Circuit.

Submitted June 2, 1958.

Decided October 24, 1958.

Herbert F. Roth, Asst. U. S. Atty., Southern District of New York, New York City (Paul W. Williams, U. S. Atty., Southern District of New York, New York City, on the brief), for plaintiff-appellee.

Herbert E. Rosenberg, New York City, for defendant-appellant.

Before HINCKS, PICKETT and MOORE, Circuit Judges.

MOORE, Circuit Judge.

Appellant appeals from an order denying his motion made pursuant to 28 U.S. C.A. section 2255 and Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S. C.A., to vacate and set aside two judgments of conviction for violations of the federal narcotics laws. The grounds asserted for the relief requested were that the judgments imposed upon him in the Southern District in 1937 and 1941, respectively, were in violation of due process because he was not represented by counsel. The reason that appellant is desirous of vacating these federal convictions is that again in the toils of the law as a narcotics offender he was sentenced by a court of the State of New York in 1950 as a fourth felony offender. The basis for his status as a fourth offender was the history of three prior convictions in the federal court in the Southern District of New York for narcotics violations in 1937, 1941 and 1946. As to the last conviction, appellant makes no claim that he was not represented by counsel. The district court found that the records and affidavits before him "sufficiently indicate that the defendant was represented by counsel both in 1937 and in 1941." Although appellant had requested to appear and testify upon a hearing, the court found no justification for a hearing, saying "The naked assertion of the defendant to the contrary is not sufficient to raise a genuine issue of fact."

Procedurally, the motion is not properly within section 2255, the sentences having been served, but it will be regarded as a petition for a writ in the nature of coram nobis. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248.

In many of these cases the defendants allow a substantial period of time to elapse before they assert their alleged grievances. This may be because they are unaware of their rights or because the law has been developing in their favor or because counsel has been found who is able and willing to espouse their cause. In any event, in this case twenty years have elapsed since the 1937 plea of guilty and the imposition of sentence, the trial judge is dead, counsel said to have appeared for appellant cannot be located, and counsel for the government in the case can no longer remember the specific case. Because of this unavailability of persons having actual knowledge, the government can do no more than to rely upon the court's bailiff to describe the practice of the trial judge in explaining to a defendant his constitutional rights, insisting that defendants be represented by counsel, assigning counsel if defendants were not represented and advising them that if a plea of guilty were...