United States v. Granello

• Decision Date: 18 October 1968
• Docket Number: Docket 32370.,No. 44,44
• Citation: 403 F.2d 337
• Parties: UNITED STATES of America, Appellee, v. Salvatore GRANELLO, a/k/a Sally Burns, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

403 F.2d 337 (1968)

UNITED STATES of America, Appellee, v. Salvatore GRANELLO, a/k/a Sally Burns, Appellant.

No. 44, Docket 32370.

United States Court of Appeals Second Circuit.

Argued September 17, 1968.

Decided October 18, 1968.

Certiorari Denied February 24, 1969.

Irving Anolik, New York City, Irving Anolik, Michael P. Direnzo, New York City, for appellant.

John H. Doyle, III, Robert M. Morgenthau, U. S. Attys., for the Southern District of New York, Roger J. Hawke, Asst. U. S. Atty., of counsel, for appellee.

Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.

Certiorari Denied February 24, 1969. See 89 S.Ct. 878.

FRIENDLY, Circuit Judge:

Salvatore Granello appeals from a denial by Judge Dimock in the District Court for the Southern District of New York, of an application under 28 U.S.C. § 2255 to vacate his conviction for failure to file income tax returns for 1956 and 1957, which we affirmed, 365 F.2d 990 (1966), cert. denied, 386 U.S. 1019, 87 S.Ct. 1367, 18 L.Ed.2d 458, rehearing denied, 387 U.S. 959, 87 S.Ct. 2072, 18 L. Ed.2d 1340 (1967).

On the basis of a letter from Lowell M. Birrell stating that his law firm, Birrell & Larson, "represented Salvatore Granello and George Levine in various matters during the period from 1954 through 1957" and "received many confidential papers and documents in their capacity as attorneys for Messrs. Granello and Levine," Granello seeks to renew the challenge to the use of material from the Birrell records that was rejected on his appeal. The unsworn letter does not even claim that Birrell & Larson were acting as Granello's attorneys in the transaction here at issue and, as Judge Dimock held below, the trial record made "evident that the relations between defendants and Birrell, far from seeming that of clients and attorney, were even more distant than arms length." Moreover, the attorney-client privilege was one of the grounds for exclusion raised on appeal, and we rejected it in holding that the records were admissible against Granello. 365 F.2d at 995-996. Except in extraordinary circumstances not here present, § 2255 may not "be employed to relitigate questions which were raised and considered on the appeal." Castellana v. United States, 378 F.2d 231, 233 (2 Cir. 1967).

Granello's second point is that since at the time of the trial the Government had in its possession a 300-page inventory of the voluminous documents seized from Birrell, its failure to make this available to defense counsel denied fundamental fairness. We need not pass on the premise of this argument — that the prosecution has a duty to turn over not merely evidence known to it but its own work product in another case that would assist the defense — although this surely would be occupying new ground. The only items among the Birrell records in which Granello's trial counsel had indicated any interest were the law firm's general ledger and certain checkbooks. Before denying the application the court below directed the Assistant United States Attorney to see whether these were listed in the inventory; the prosecutor reported that the inventory was silent about the ledger and, at the judge's direction, made available to the defense the checkbooks that were discovered. Granello's counsel did not avail himself of the judge's offer to have the inventory checked by the court and made no further application on the basis of the materials he received. Furthermore, as our previous opinion shows, 365 F.2d at 996-997, Granello's former counsel in moving for a new trial availed himself of an indication from Birrell of what supposedly helpful information the files might contain.

Granello's third point is this: In his brief opposing the petition of Granello and Levine for certiorari, the Solicitor General disclosed that from May 1962 to May 1963 the Government had conducted electronic surveillance by a microphone installed through trespass in a commercial establishment in Florida in which Levine may have had a proprietary interest. The Solicitor General...