United States v. Garguilo

Decision Date27 November 1963
Docket NumberNo. 180,Docket 28395.,180
Citation324 F.2d 795
PartiesUNITED STATES of America, Appellee, v. Ralph GARGUILO, Appellant.
CourtU.S. Court of Appeals — Second Circuit

Harry H. Voigt, New York City, for appellant.

Donald J. Cohn, Asst. U. S. Atty., Southern Dist. of New York, New York City (Robert M. Morgenthau, U. S. Atty., and John S. Martin, Jr., Asst. U. S. Atty., on the brief), for appellee.

Before LUMBARD, Chief Judge, and KAUFMAN and HAYS, Circuit Judges.

KAUFMAN, Circuit Judge.

After a trial before Judge Palmieri and a jury, Ralph Garguilo was convicted of counterfeiting, 18 U.S.C. § 474, and his conviction was affirmed by this court on appeal. 310 F.2d 249 (2d Cir. 1962). While still imprisoned, Garguilo sought to vacate his eighteen-month sentence under 28 U.S.C. § 2255 on the ground that trial counsel of his own choosing was grossly incompetent. Judge Palmieri found Garguilo's allegations to be "frivolous" and accordingly denied the motion to vacate without a hearing.

During the pendency of this appeal, Garguilo completed his sentence and was released from custody. The government thus seeks to dismiss the appeal for mootness. While we agree that Garguilo's release does render his § 2255 application moot, Parker v. Ellis, 362 U.S. 574, 575, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960); United States v. Brilliant, 274 F.2d 618, 620 (2d Cir. 1960), we deem it proper to treat the petition as for a writ of error coram nobis, which is available even after release from custody. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Kyle v. United States, 288 F.2d 440 (2d Cir. 1961).

Before examining Garguilo's contentions of inadequate trial representation, it seems appropriate to consider the standards by which these allegations must be weighed. In United States v. Morgan, supra 346 U.S. at 511, 74 S.Ct. at 252, 98 L.Ed. 248, the Supreme Court emphasized that the "extraordinary" remedy of coram nobis is available "only under circumstances compelling such action to achieve justice." The writ, the Morgan court explained, is designed to correct errors "of the most fundamental character." 346 U.S. at 512, 74 S.Ct. at 253, 98 L.Ed. 248. Where inadequacy of counsel is alleged, moreover, independently stringent requirements have become well established. Thus we have held that relief may be obtained only when representation has been so woefully inadequate "as to make the trial a farce and a mockery of justice." United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950). Errorless counsel is not required, and before we may vacate a conviction there must be a "total failure to present the cause of the accused in any fundamental respect." Brubaker v. Dickson, 310 F.2d 30, 39 (9th Cir. 1962), cert. denied, 372 U.S. 978, 83 S.Ct. 1110, 10 L.Ed.2d 143 (1963).

When Garguilo's allegations are measured by these standards, they fall far short of entitling him to the relief sought. Apart from unsupported assertions that his attorney was inadequately prepared for trial, Garguilo concentrates his fire on three instances in which errors of judgment allegedly manifested the "incompetence" of his counsel. First, he complains that his attorney rejected his request to be placed on the stand; secondly, he asserts that his counsel conducted an inadequate cross-examination of a particular government witness; finally, he condemns his attorney for failing to call a specific witness who would allegedly have testified in Garguilo's behalf.

To place these objections in context, it is necessary to fill out some of the background of the trial. In so doing, we note that the evidence pointing to Garguilo's guilt was overwhelming. One Mario Villari, a co-defendant who pleaded guilty, testified that Garguilo urged him to collaborate in a counterfeiting operation. Villari was a printer, and he told the jury that Garguilo had furnished him with photographic negatives of a ten dollar bill, from which Villari made offset plates. The government then called Albert Dellamonica who asserted that Garguilo had borrowed a camera especially designed for copying, and had requested that Dellamonica deny that this particular camera had been loaned. Additional evidence indicated that government agents had seized offset plates of a ten dollar bill from Villari's shop, and that Garguilo's fingerprints had been found on these plates.

Garguilo now asserts that he had spoken to Villari only about printing stationery containing photographs of postage stamps which he intended to sell to stamp dealers, and he denies ever suggesting or participating in a scheme to counterfeit currency. He claims that he would have testified to this effect if placed on the stand; that the uncalled witness would have confirmed Garguilo's intention to enter the stationery business; and that cross-examination of a government agent would have established that...

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