United States v. Forlano

• Decision Date: 24 February 1965
• Parties: UNITED STATES of America v. Nicholas FORLANO, Petitioner.
• Court: U.S. District Court — Southern District of New York

249 F. Supp. 174

UNITED STATES of America v. Nicholas FORLANO, Petitioner.

United States District Court S. D. New York.

February 24, 1965.

Abraham H. Brodsky, New York City, for petitioner.

Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, for the United States; Thomas F. Shea, Asst. U. S. Atty., of counsel.

WYATT, District Judge.

This is a motion by Nicholas Forlano for an order vacating and setting aside his judgment of conviction in this Court on April 10, 1935.

The sentence contained in the judgment has been completely served. Relief in such a situation cannot be had under 28 U.S.C. § 2255 because the applicant is not "in custody" under the sentence. United States v. Bradford, 194 F.2d 197, 200 (2d Cir. 1952). But a motion for the common law writ of error coram nobis properly invokes the jurisdiction of this Court to set aside the judgment of conviction, even where the sentence has been fully served. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). Our Court of Appeals has in fact treated the present motion of Forlano as a proper application for a writ of error coram nobis and within the Court's jurisdiction. 319 F.2d 617, 618 (2d Cir. 1963).

An indictment was handed up to this Court on March 22, 1935 (C 96/786) charging Forlano and another defendant, Earl Edwards, in six counts with offenses against the narcotic laws. Edwards was also charged (but not Forlano) in a separate indictment (C 96/787) of six counts.

Forlano, according to the records, was arrested on March 13, 1935. The Commissioner set bail at $3,000. This was later reduced on March 22 to $2,000 (SM 111). Forlano made this bail by surety company bond and was released about March 23, 1935.

On March 25, 1935, Forlano pleaded guilty to all six counts of the indictment (C 96/786) against him and Edwards. The record shows that his plea was taken by Judge Hincks, then a District Judge for the District of Connecticut and sitting in this Court as a visiting judge.

On the same day—March 25, 1935— Edwards pleaded not guilty before Judge Hincks to all six counts of the two indictments against him.

On April 3, 1935, Edwards changed his plea to guilty on all counts of the two indictments against him and he was sentenced on both indictments the same day.

On April 3, 1935, the record shows that sentencing of Forlano was adjourned to April 10, 1935 and he was referred to the Probation Officer.

On April 10, 1935, sentence was imposed on Forlano and judgment of conviction signed by Judge Caffey of this Court. The sentence was 18 months imprisonment on counts 1 and 2 (to run concurrently); two years imprisonment on counts 3, 4, 5 and 6 (to run concurrently with each other and consecutively with the sentence on counts 1 and 2); execution of prison sentence on counts 3, 4, 5 and 6 was suspended and Forlano placed on probation for 2 years beginning at his release from prison; there was a fine of $1 on counts 3 and 6, payment suspended. In short, Forlano had to serve a maximum of 18 months and began serving this sentence on the day of sentence.

The present motion was served and filed on November 2, 1962—more than 27 years after imposition of sentence. The claim of Forlano is that he "pleaded guilty to all six counts of the said indictment without the advice of counsel and without having intelligently waived counsel" (petition, para. 7).

Judge Dawson held a hearing and on December 10, 1962 denied the motion (D.C., 212 F.Supp. 77).

The Court of Appeals reversed (319 F.2d 617) because the basis for the denial by the District Court was "uncertain", because the District Court had not been referred to Carnley v. Cochran, 369 U.S. 506, 514-516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962) for the "governing legal principles", and because "much probably relevant evidence was mentioned but not properly established" (319 F.2d at 620).

It is clear from the Court of Appeals opinion that the burden is on Forlano to show that he was not represented by counsel at the time of pleading guilty and at the time of sentencing. If Forlano is able to carry this burden, the judgment of conviction must be set aside.

A hearing was held by me on November 4, 1964 and evidence received. Judge Hincks and Judge Caffey were then both dead. I reach the same conclusion as Judge Dawson: that Forlano has not sustained his burden.

The case for movant is solely his own testimony plus the diary and testimony of David M. Markowitz, Esq., who I find acted as attorney for movant in the 1935 proceedings in this Court.

Forlano testified that he remembered appearing in this Court, then in the old Post Office Building, on March 25, 1935 (SM 38); that he was not "at that time" represented by an attorney, namely, when he "appeared in court for arraignment" (SM 39); that he does not "remember" the Court at that time advising him that he "had a right to get a lawyer" (SM 39); that he did not have any money at that time to hire a lawyer (SM 40); that he was then "just 21" (SM 40); that he does not remember whether he intended to waive his right to have a lawyer but that he "must have" (SM 41; later he testified that this was not his intention, SM 43); that no lawyer was with him when he pleaded guilty on March 25, 1935; that he does not "remember" telling the Court that he didn't want a lawyer (SM 41); that when sentenced on April 10, 1935 he was not represented by an attorney, was not told by the Court that he could have an attorney assigned, and was not asked if he had an attorney.

On cross-examination Forlano testified that he thought he was pleading guilty to possession of narcotics and when he pleaded guilty was told by some "agent" that he "would get a six months probation on a suspended sentence" (SM 57); that he was not aware he could be sent to jail after pleading guilty (SM 58). This testimony is not believed. It also seems clear from his testimony (for example, SM 52-55) that Forlano understood the narcotic charges against him.

On cross-examination Forlano testified that when he was "maybe sixteen years old" he pleaded guilty to a charge in the state court and was then represented by a lawyer and that later in 1935 there was a case in Special Sessions where he was also represented by a lawyer (SM 60, 61). As to the 1935 Special Sessions case, it is confirmed by other evidence that he was represented by a lawyer, as will later appear.

On redirect examination, movant denied that he knew a lawyer named Morris Rappaport or had ever heard the name.

Having in mind that Forlano waited some 27 years to attack his 1935 conviction and then only after being indicted in New York County with consequent motive to avoid sentencing as a multiple offender, I have given the record that "closest scrutiny" which the Court of Appeals directed (319 F.2d at 620).

I find that no lawyer was physically present in the courtroom with Forlano either on March 25, 1935 when he pleaded guilty or on April 10, 1935 when he was sentenced. I find, however, that at the time he pleaded guilty Forlano did have a lawyer, David M. Markowitz, Esq., and that before the date of his sentence Forlano also had another lawyer, Morris Rappaport, Esq. I find that, although neither of these lawyers was in court at the time of the plea of guilty or of sentence, Forlano did have the "Assistance of Counsel for his defence" under the Sixth Amendment. I find, based on evidence as to the practice of the Court in 1935, that at the time of plea and of sentence, Forlano was asked if he had an attorney and also whether he wanted the Court to assign an attorney to represent him, if he had no money himself to secure an attorney. I find that Forlano, voluntarily and intelligently, waived the presence of any lawyer with him in the courtroom.

Certain writings at the time seem to me to be more indicative of the truth than the present recollection of any witness —not limited to movant—as to events nearly thirty years ago.

Mr. Markowitz had no recollection of any of the events of 1935 (SM 8, 22, 24, 32, 33); his testimony was as to his custom at the time and the meaning of his diary entries based on his then methods. The diary entries, supplemented to some extent by his testimony, seem to me significant. The diary was described as a "master diary" kept in Markowitz' office but consulted by all of his associates to guide court appearances (SM 23-24).

On February 27 (all dates are in 1935 unless otherwise indicated) appears an entry:

"SSM—Forlano—Leccerra" in red pencil followed by indecipherable initials and "3/8" in black pencil.

The red pencil notation refers to a court engagement; all such were put in the diary in advance in red pencil as a reminder (SM 10, 20). This notation means that on February 27 Markowitz appeared in the Court of Special Sessions, Manhattan for Forlano and Leccerra and the matter was put off to March 8. The matter was an arrest on February 6 of Forlano and Leccerra for a violation of a narcotics law of the state; Forlano had been released on $500 bail (Ex. E). There is no question but that Markowitz represented as lawyer on this charge Forlano and Leccerra; Forlano testified that he did not remember this and added: "I think there was another defendant in the case and he brought the lawyer in" (SM 61). It is doubtful that the other defendant brought in the lawyer because in the first diary entry above the names of the two defendants appear and that of Forlano is first. In any event, the lawyer was acting for both defendants: Forlano as well as Leccerra.

On March 8, the diary entry, all in red pencil, is:

"SSM—Lecerra &amp Forlano 2/27 3/15."

This means that Markowitz appeared in Special Sessions on March 8 and the matter was put off to March 15; the "2/27" refers to the last time the case was on the calendar.

On March 13, Forlano was arrested on the federal narcotics charge on which came the conviction he now seeks to set aside.

On March 14, appears an entry in black pencil in the...