United States v. Mancusi, 505
| Decision Date | 24 April 1968 |
| Docket Number | Docket 30931.,No. 505,505 |
| Citation | 393 F.2d 482 |
| Parties | UNITED STATES of America ex rel. Odell MORTON, Jr., Relator-Appellee, v. The Hon. Vincent R. MANCUSI, Warden of Attica Prison, Attica, New York, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City , for respondent-appellant.
Phylis Skloot Bamberger, New York City (Anthony F. Marra, New York City, of counsel), for relator-appellee.
Before MOORE and HAYS, Circuit Judges, and ZAVATT,* District Judge.
This is an appeal by respondent Warden from a decision and order which sustained a writ of habeas corpus. Appellee was convicted in the Oneida County Court, New York, on December 11, 1963, after a jury trial, of selling narcotics in violation of § 1751(1) of the then effective New York Penal Law, McKinney's Consol.Laws, c. 40. He was sentenced to a term of 5-10 years' imprisonment; his conviction was unanimously affirmed by the Appellate Division, Fourth Department (People v. Morton, 23 A.D.2d 629, 257 N.Y.S.2d 583), and leave to appeal to the Court of Appeals was denied.
The present proceeding was commenced by a habeas corpus petition dated March 29, 1966, which alleged that petitioner was entitled to release because there was insufficient evidence upon which to base a guilty verdict. The District Court so found, on the theory that "as a matter of law, the prosecution did not establish beyond a reasonable doubt that Polemini had made an illegal buy of narcotics from the petitioner," and that "fundamental fairness required that the prosecution present proof that Polemini, a paid informer, had no other narcotics in his possession when he made the alleged illegal buy."
At the state trial, the principal evidence against Morton was the testimony of Joseph Polemini, a special employee of the New York State Bureau of Narcotics Control. Polemini testified that he was taken to Utica by a narcotics investigator, that he met Morton in a bar, and that Morton sold him narcotics. Polemini turned over an envelope containing narcotics to the narcotics investigator after his alleged meeting with Morton.
There was evidence that prior to the meeting Polemini had been searched by two state agents to make certain he had no narcotics on him but that between the search and the alleged sale Polemini had been alone in his hotel with his suitcase (which had not been searched).
The court below found that it was standard practice to search a special employee before he went out to make a buy but that the search of Polemini had been totally ineffective. The court, therefore, ruled that as a matter of law the prosecution did not establish guilt beyond a reasonable doubt.
Appellee argues that the District Court properly issued the writ because the State failed to meet its due process burden of establishing guilt beyond a reasonable doubt. There is no such constitutional burden; it is sufficient that a defendant is given a fair trial in accordance with constitutionally permissible rules of procedure. The contention that a federal court should, in a collateral proceeding, review the evidence adduced at the state trial to determine if it was sufficient to sustain a conviction has been rejected many times. See e. g., Martinez v. Patterson, 371 F.2d 815 (10th Cir. 1966); Faust v. State of North Carolina, 307 F.2d 869 (4th Cir. 1962), cert. denied, 371 U.S. 964, 83 S.Ct. 547, 9 L.Ed.2d 511 (1963). Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958), relied upon by appellee, does not create a different rule. That case dealt with a California statute which placed on the taxpayer, as a prerequisite of obtaining a tax exemption, the burden of filing an oath in substance that he did not advocate the overthrow of government. Since this procedure operated as a...
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