United States v. Consiglio

• Decision Date: 04 March 1975
• Docket Number: Crim. No. H-24.
• Citation: 391 F. Supp. 564
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Vincenzo CONSIGLIO et al.

391 F. Supp. 564

UNITED STATES of America v. Vincenzo CONSIGLIO et al.

Crim. No. H-24.

United States District Court, D. Connecticut.

March 4, 1975.

Paul E. Coffey, Sp. Atty., Dept. of Justice Organized Crime Strike Force, Hartford, Conn., for plaintiff.

W. Paul Flynn, New Haven, Conn., for Vincenzo Consiglio.

Joseph A. Licari, Jr., New Haven, Conn., for Fred Campagnuolo.

William P. Murray, Jr., West Hartford, Conn., for Joseph DiPietro.

Milton I. Caplan, New Haven, Conn., for John Laudano.

John V. Cassidento (deceased), West Haven, Conn., Stephen R. Ketaineck, West Haven, Conn., for Gary Zimmerman.

J. Daniel Sagarin Bridgeport, Conn., for James DeNegris, Jr.

Charles A. Pulaski, Jr., New Haven, Conn., for Carmello Coco.

John P. McKeon, Hartford, Conn., for Benjamin Kaner.

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO SET ASIDE THE JUDGMENT UPON THE GROUND OF NEWLY DISCOVERED EVIDENCE

BLUMENFELD, District Judge.

Defendants were charged in a nine-count indictment filed on October 30, 1970 with substantive and conspiracy violations of the interstate gambling laws. Pre-trial motions pursuant to 18 U.S.C. § 2518(10)(a) (1970) were filed to suppress the evidence obtained by the interception of wire communications on the grounds that in securing wiretap authorization the government had failed to comply with 18 U.S.C. § 2516(1) (1970).¹ These motions were denied by Judge Clarie in a thoroughly reasoned opinion which set forth a full explication of the facts found and the evidence to support them. United States v. Consiglio, 342 F.Supp. 556 (D.Conn.1972), aff'd, 486 F.2d 1397 (2d Cir. 1973), cert. denied, 417 U.S. 918, 94 S.Ct. 2624, 41 L.Ed.2d 223 (1974). On March 5, 1973, each of the defendants involved in the instant motion was convicted on his plea of nolo contendere² to one count of the indictment, and the government announced that it intended to move for dismissal of the remaining counts of the indictment at the time of sentencing.³ Moreover, by agreement of the government and the defendants, a number of issues were reserved for appellate review. Among these issues, the only one which has relevance was the question of government compliance with 18 U.S.C. § 2516(1) (1970). On November 19, 1973, the Second Circuit summarily affirmed the ruling of the district court, and on June 19, 1974, the Supreme Court denied certiorari.

The defendants (hereafter petitioners) have now filed this "Motion to Set the Judgment Aside upon the Ground of Newly Discovered Evidence and for a Stay of Execution Pending Resolution of the Motion." The stay was granted by Judge Zampano and the matter was assigned to me as the sentencing judge.

The petitioners essentially contend that because Judge Clarie's denial of their suppression motion was based upon facts deduced from only the evidence before him at the time, unaugmented by allegedly newly discovered evidence, they are entitled to withdraw their pleas of nolo contendere and vacate the judgment of conviction. In their pretrial motions to suppress and on appeal, the petitioners had challenged the authenticity of Attorney General John Mitchell's initials on two memoranda dated February 13, 1970 and April 6, 1970, authorizing applications for the wiretaps from which was obtained the evidence which they were seeking to have suppressed. Under United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), it is now clear that 18 U.S.C. § 2516(1) requires that such authorizations must be personally approved by the Attorney General or a specially designated Assistant Attorney General. A failure to comply with that requirement leads to the suppression of the evidence obtained from the illegally authorized wiretap. Following the original hearing, Judge Clarie found that the Attorney General's initials on the memoranda were genuine. He based this factual conclusion upon an affidavit of Sol Lindenbaum, Executive Assistant to the Attorney General, who attested that the "Attorney General approved a request for authority to apply for an interception order" with respect to the two wiretaps in question in this case. Affidavit of Mr. Sol Lindenbaum (Dec. 14, 1971). The court held that this affidavit constituted sufficient proof of the genuineness of the Attorney General's initials.⁴

The petitioners now assert that subsequent developments have undermined the basis for Judge Clarie's finding. On January 14, 1972, a deposition of Sol Lindenbaum was taken pursuant to an order of the United States District Court for the Western District of Pennsylvania in which he testified that he had not personally seen former Attorney General Mitchell initial the memoranda involved in that particular case, although he had attested, as in this case, that the initials were genuine. This, the petitioners argue, is newly discovered evidence which seriously opens to question the usefulness of Mr. Lindenbaum's affidavit to support Judge Clarie's finding. In addition, the petitioners alleged in their motion that a Dr. Phillip D. Bouffard of the Institute of Criminal Law and Procedure, Forensic Sciences Laboratory in Washington, D. C. had studied John Mitchell's initials on a number of questioned documents and had serious doubts about their genuineness.

I.

The petitioners have characterized their motion as one to set the judgment aside on the basis of newly discovered evidence pursuant to Fed.R.Crim.P. 33. However, it is clear that Rule 33 is inapplicable to the instant case. That rule provides a basis for obtaining a new trial. In the instant case, judgments of conviction were entered against the petitioners upon their pleas of nolo contendere—not after a trial.

The appropriate basis for the petitioners' motion is 28 U.S.C. § 2255 (1970) which provides federal prisoners with a remedy for attacking the sentence or judgment as broad as habeas corpus.⁵ See generally United States v. Hayman, 342 U.S. 205, 219, 72 S.Ct. 263, 96 L.Ed. 232 (1952). Although the posture of this case is such as to make 28 U.S.C. § 2255 (1970) the appropriate vehicle for obtaining the relief they seek, two factors in the prior proceedings which relate to the availability of § 2255 warrant comment.

First, it is ordinarily held that where, as in this case, an issue has been considered and determined by the trial court and upheld on direct review by the Court of Appeals, it may not be collaterally relitigated, see Argo v. United States, 473 F.2d 1315 (9th Cir.), cert. denied, 412 U.S. 906, 93 S.Ct. 2298, 36 L.Ed.2d 972 (1973); Meyers v. United States, 446 F.2d 37 (2d Cir. 1971); Hardy v. United States, 127 U.S.App.D. C. 162, 381 F.2d 941 (1967). However, in Kaufman v. United States, 394 U.S. 217, 226, 89 S.Ct. 1068, 1074, 22 L.Ed.2d 227 (1969) it was held that where a petitioner makes a "substantial allegation of newly discovered evidence" the remedy under § 2255 is available to a federally convicted and sentenced criminal defendant.⁶ As noted above, the petitioners have alleged such new evidence, specifically, the handwriting analysis indicating that the initials on the memoranda authorizing the wiretaps were not those of John Mitchell.

A second factor in the prior proceedings presents a novel problem, but one that is likely to recur. Ordinarily when a defendant enters a plea of guilty or nolo contendere, he waives all non-jurisdictional defects, including constitutional challenges to the prosecution that were or might have been raised at or before trial. A collateral attack upon his plea would be limited to an inquiry into the voluntariness of the plea and the adequacy or competence of the advice provided him by counsel. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

However, this is not the ordinary case. The petitioners, by stipulated agreement with the government and with the approval of the court, entered nolo pleas while reserving their right to appeal the court's ruling on their motion to suppress. While the practice of permitting such qualified guilty or nolo pleas has not been widely accepted, see United States v. Mizell, 488 F.2d 97 (5th Cir. 1973) and cases cited therein, it has become an apparently sanctioned practice in the Second Circuit. See United States v. Rothberg, 480 F.2d 534 (2d Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 159, 38 L.Ed.2d 106 (1973); United States v. Mann, 451 F.2d 346 (2d Cir. 1971); cf. United States v. Doyle, 348 F.2d 715, 719 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965).⁷ Indeed, in the instant case a Second Circuit panel in a summary affirmance passed upon the merits of the issues reserved by the defendants and argued on appeal.⁸

One question raised by the instant motion is whether the reservation of the right to appeal an issue also preserves for the petitioners the right to apply for § 2255 relief with regard to reserved issues.⁹ In a directly analogous context, the Supreme Court in Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L. Ed.2d 196 (1975) has just upheld the view that "where state law permits a defendant to plead guilty without forfeiting his appeals on collateral constitutional claims, it would be a trap to the unwary if a defendant who waived his right to trial in reliance on the state appeal procedures was thereafter precluded from pressing his federal constitutional claims in the district court." United States ex rel. Newsome v. Malcolm, supra, 492 F.2d at 1170. See United States ex rel. Daneff v. Henderson, 501 F.2d 1180 (2d Cir. 1974); United States ex rel. (Stephen J.) B. v. Shelly, 430 F.2d 215 (2d Cir. 1970). The reasoning of Newsome would also seem to compel a similar result here.

Both a federal and state defendant who reserves his right to appeal certain issues upon entering a plea of guilty or nolo contendere has simply not waived his...