United States v. Miller

• Decision Date: 26 November 1968
• Docket Number: Crim. No. 11191.
• Citation: 296 F. Supp. 422
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. James MILLER.

296 F. Supp. 422

UNITED STATES of America v. James MILLER.

Crim. No. 11191.

United States District Court D. Connecticut.

November 26, 1968.

Jon O. Newman, U. S. Atty., Hartford, Conn., for the United States.

W. Paul Flynn, New Haven, Conn., Richard H. Simons, Milford, Conn., Steven B. Duke, New Haven, Conn., for James Miller.

RULING ON THIRD AND FOURTH MOTIONS FOR NEW TRIAL

BLUMENFELD, District Judge.

In June 1966 James Miller was found by a jury to have conspired to import heroin into the United States in violation of 21 U.S.C. §§ 173, 174, largely on the basis of testimony by one Joseph Michel Caron. Again the defendant in two separate motions, each denominated "Amendment to Motion for New Trial," filed while an appeal from the denial of one filed and heard earlier is pending, presses for a new trial on several grounds. His first motion for a new trial was filed promptly after the verdict on the ground that extraneous communications to three jurors contaminated the verdict. The denial of that motion was affirmed in the same opinion that affirmed Miller's conviction. United States v. Miller, 381 F.2d 529, 538-540 (2d Cir. 1967), cert. denied, 392 U.S. 929, 88 S.Ct. 2273, 20 L.Ed.2d 1387 (1968). The second motion for a new trial was denied, 277 F.Supp. 200 (D. Conn.1967), and an appeal from that decision is pending. The third motion for a new trial, based on essentially the same grounds as was the first one, was filed February 27, 1968. A hearing and ruling on that one was deferred, pending the outcome of an appeal from an order enjoining the defendant and his attorneys from conducting interviews of the jurors. 284 F.Supp. 220 (D.Conn.1968). That ruling was affirmed on October 9, 1968. 403 F.2d 77 (2d Cir. 1968). The fourth motion was filed on August 30, 1968. In it the defendant again claims that instead of Miller, one Mario Natalizio was the guilty party, and also that significant evidence to impeach Caron was suppressed. Although filed later in time, this fourth motion will be considered first.

I.

Miller reiterates his contention that Joseph Michel Caron, one of the government's principal witnesses at the trial, made a mistake in identifying Miller as the pick-up man to whom he made two separate deliveries of large quantities of heroin secreted in an automobile he had driven to Bridgeport, Connecticut, from Montreal. On the second motion for a new trial, the defendant offered two writings signed by one Mario Natalizio purporting to be confessions that he, not Miller, was the pick-up man in Bridgeport. Upon all the facts, fully elucidated in 277 F.Supp. 200, the court found that the "confessions" were neither newly discovered nor credible.

What was introduced at this hearing simply overlaps, in widening spirals, what was offered before to corroborate the contention that Natalizio was in Bridgeport during the periods when the deliveries were made. There was no direct testimony that Natalizio was in Bridgeport on the specific dates, August 22 and September 21, 1963, let alone at the motel where the deliveries took place. One of the defendant's witnesses, Daniel LeFemine, managed the apartment building in North Miami Beach where Natalizio lived. He testified that in July 1963 Natalizio, after saying that he and another man were going North to make a "score," left and returned a month later.¹ There is other evidence that Natalizio flew to Philadelphia with LeFemine's son about Labor Day 1963, from where they went to New York by train. About that time LeFemine drove his son and Natalizio to Bridgeport, letting them off at Natalizio's house in Bridgeport. All this is too remote to establish that Natalizio was actually present at the time and place of the deliveries. It is even less persuasive of the contention that Miller was not.

In an attempt from another angle to link Natalizio to the Bridgeport transactions, the defendant produced Roger Beauchemin, a courier for the conspirators who delivered an automobile containing heroin to Flint, Michigan, in July 1963. After viewing several photographs, he identified Government's Exhibit 2, a photograph of one Frank Altese, not Natalizio, as one of the pick-up men he saw at Flint, Michigan. Whether Sal Giglio, whose photograph he identified as the other man he saw at Flint, was also present when the second delivery was made by Caron to the defendant at Bridgeport is still questionable. But assuming that Giglio was the third man at Bridgeport, in the absence of any link between Natalizio and Giglio at Flint, there is no basis in Beauchemin's testimony for inferring that Natalizio was with Giglio at Bridgeport at the critical times and places.

The presence of Natalizio in Bridgeport at certain vague times in September of 1963 and his activities there in connection with an attempt to obtain some motel registration records was considered in the second motion. 277 F.Supp. at 204. Nothing in the additional testimony introduced at the hearing on this motion causes me to doubt that Miller was the pick-up man.

Miller's contention that it was not he, but Natalizio, who took the deliveries, even if based on facts which would permit an inference a notch above speculation or conjecture,² ignores the reality of Mrs. Caron's testimony at the trial,³ in addition to that of her husband. Taking into account the conclusiveness with which Miller's identification was established at the trial, see 277 F.Supp. at 202, and tested on appeal, see 381 F.2d at 537-538, the showing on this motion is still far short of what would probably produce an acquittal at a new trial. See Brown v. United States, 333 F.2d 723, 724 (2d Cir. 1964).

II.

Implicit in the challenge to the identification of Miller at trial is an effort to undermine the credibility of Joseph Michel Caron, a principal identification witness. Several lines of attack are pursued.

A.

The claim is again made that Caron's testimony that Lucien Rivard told him that "Frank," the pick-up man in Bridgeport, was a hairdresser must have been a lie.⁴ On the earlier motion the defendant contended, "If Rivard made the statement, therefore it was a lie." 277 F.Supp. at 210. Now a reason asserted for the contention that it was a lie is that Caron did not tell the government's investigators about it until long after he had been arrested. The mere fact that the conversation initiated by Rivard about Miller did not appear in any statement taken by government investigators until Mr. William Butler, then the Assistant United States Attorney for the Southern District of Texas, made a note of it when questioning Caron during the preparation for the trial of Miller's co-conspirators in the Southern District of Texas does not establish that Caron had not mentioned it before.⁵ Caron testified to this fragment of conversation at the trial in Texas. That was in September 1965 before the Miller case was tried. Obviously it was open to the defense at Miller's trial to question Caron as to when for the first time he had told anyone about this conversation. Even if it had not been related earlier by Caron, many explanations other than deliberate falsification could account for the delay. What effect his answers might have had upon his credibility would have been for the jury.

B.

From another side, the defense offers the affidavit of Lucien Rivard that he did not know, never had seen, nor had any dealings with Miller under that name or any other name, nor that he had any conversation with Caron about Miller. Rivard's statement is not credible. A few months before, while serving a sentence for his own participation in this international conspiracy, see Rivard v. United States, 375 F.2d 882 (5th Cir.), cert. denied sub nom. Groleau v. United States, 389 U.S. 884, 88 S.Ct. 151, 19 L.Ed.2d 181 (1967), Rivard claimed that he had nothing to do with narcotic smuggling. Affidavit of Fenelon A. Richards, Oct. 8, 1968. I attach no credit to Rivard's affidavit. I find it unworthy of belief.

C.

In a shift from an attempt to give him the direct lie, the defendant advances the claim that Caron was induced to conjure up the incident of his conversation with Rivard about "Frank" being a hairdresser. This is a two-stage argument, one of which requires consideration of an extraordinary incident which occurred on February 4, 1966, between the Texas trial of Miller's co-conspirators and the Hartford trial of Miller. It came about in this way. During an interview of Caron by the government's attorneys shortly before the Rivard trial (September 1965) Caron mentioned that he had observed the license number of the automobile he saw being used by Miller and a companion at the time of the second delivery at Bridgeport. At the time this was of no significance for the trial of Rivard, but might be of considerable importance at the trial of Miller.

When a motion to transfer the trial of Miller's case to Connecticut was granted in February 1966, Mr. Butler thought that it would be advisable to see and talk to Caron, to insure his continued cooperation as a witness. He did not attempt to go over the entire case with Caron, but did ask him whether or not he had been able to remember the license number on the car that was at the Bridgeport Motor Inn at the time of the second delivery in Bridgeport. As recorded by Mr. Butler in a memorandum a few days later:

"Caron stated that all he could remember was that the plates were yellow and black and part of the number on the plates was the number 26. This was the first time I had received any indication that Caron could recall any part of the numbers. Since I have a slight knowledge of hypnotism, I had previously given consideration to the use of hypnotism to try to obtain information in this case. Because what I know of hypnotism indicates that it can be useful in bringing back memories from a subconscious mind that can not be brought out of the conscious mind, I asked Caron whether he would be willing to submit to hypnotism to

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