United States v. Re, 208

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation372 F.2d 641
Docket NumberDocket 30710.,No. 208,208
PartiesUNITED STATES of America, Appellee, v. Gerardo A. RE, also known as Jerry A. Re and Gerard F. Re, Appellants.
Decision Date06 February 1967

372 F.2d 641 (1967)

UNITED STATES of America, Appellee,
v.
Gerardo A. RE, also known as Jerry A. Re and Gerard F. Re, Appellants.

No. 208, Docket 30710.

United States Court of Appeals Second Circuit.

Argued November 17, 1966.

Decided February 6, 1967.


372 F.2d 642

David M. Dorsen, New York City (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, Robert L. King, Asst. U. S. Atty., on the brief), for appellee.

Daniel H. Greenberg, New York City, for appellants.

Before WATERMAN, MOORE and HAYS, Circuit Judges.

HAYS, Circuit Judge:

Gerardo A. Re and Gerard F. Re appeal from an order of the United States District Court for the Southern District of New York denying their motion under 28

372 F.2d 643
U.S.C. § 1651, the all writs statute, for a writ in the nature of a writ of error coram nobis. Appellants were convicted of violating the Securities Act of 1933 and the Securities Exchange Act of 1934. This court affirmed their convictions, 336 F.2d 306 (1964), and the Supreme Court denied certiorari, 379 U.S. 904, 85 S.Ct. 188, 13 L.Ed.2d 177 (1964). They now attack their convictions on the ground that at their trial they were denied certain constitutional rights. We find no merit in appellants' contentions and therefore affirm the order denying their motion

Since appellants are on probation they are in custody and are entitled to seek a remedy under 28 U.S.C. § 2255.1 See United States v. Washington, 341 F.2d 277, 280 (3d Cir.), cert. denied sub nom. DeGregory v. United States, 382 U.S. 850, 86 S.Ct. 96, 15 L.Ed.2d 89 (1965); cf. United States ex rel. Brewer v. Maroney, 315 F.2d 687 (3d Cir. 1963); Dillingham v. United States, 76 F.2d 35 (5th Cir. 1935). We treat their motion as having been made under that section.

I.

Appellants' first contention is that their constitutional rights were invaded when certain records were used as evidence against them. These records consisted of cash books maintained by one Birrell. Birrell was originally indicted along with appellants but his trial was severed because at the time of appellants' trial he was a fugitive from justice.

At their trial appellants objected to the admission of the cash books on the ground that they should be excluded as hearsay. On the appeal from their conviction this court held that the cash books were properly admitted as business records. 336 F.2d at 312-314.

Two years after appellants' conviction a motion by Birrell to suppress these records as evidence against him was granted on the ground that the records had been unlawfully seized. United States v. Birrell,

372 F.2d 644
242 F.Supp. 191 (S.D.N.Y.1965); 243 F.Supp. 36 (S.D.N.Y.1965)

Appellants contend that they are entitled to take advantage of the suppression of Birrell's records, i. e. that their conviction must be set aside because the records which were suppressed as to Birrell were used against them.

Since appellants did not move at their own trial to suppress this evidence although they were aware of the circumstances in which it was obtained, appellants cannot now raise the claim of illegal seizure. United States v. Indiviglio, 352 F.2d 276 (2d Cir. 1965), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). Moreover,

"A § 2255 proceeding does not serve the office of an appeal. Butler v. United States, 340 F.2d 63 (8 Cir. 1965) cert. denied, 382 U.S. 847, 86 S.Ct. 92, 15 L.Ed.2d 87 (1965) and cases there cited; Glouser v. United States, 296 F.2d 853, 856 (8 Cir. 1961) cert. denied, 369 U.S. 825, 82 S.Ct. 840, 7 L.Ed.2d 789 (1962). And it is settled that the question whether evidence was seized illegally ordinarily may not be successfully raised in a proceeding which constitutes a collateral attack on the sentence, but must be presented in the appeal from the conviction." Springer v. United States, 340 F.2d 950, 951 (8th Cir. 1965); United States v. Jenkins, 281 F.2d 193 (3d Cir. 1960); Kyle v. United States, 266 F.2d 670, 672 (2d Cir. 1959), cert. denied, 361 U.S. 870, 80 S.Ct. 131, 4 L.Ed.2d 109 (1959).

In any event appellants' claim lacks substantial merit. They had no personal or proprietary interest in these records and therefore no standing to secure their suppression. Wong Sun v. United States, 371 U.S. 471, 491-492, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Bozza, 365 F.2d 206, 222-223 (2d Cir. 1966); United States v. Granello, 365 F.2d 990, 996 (2d Cir. 1966), petition for cert. filed, 35 U.S.L.Week 3175 (U.S. Nov. 15, 1966) (No. 750).

II.

Appellants' second contention is that they were wrongfully excluded from a hearing which took place in the trial judge's chambers and which was concerned with a possible conflict of interest of an attorney who had formerly represented them. This procedure, they claim, deprived them of their constitutional right to a public trial and to be confronted by the witnesses against them.

We need not decide whether appellants had a constitutional right to be present and to confront their former counsel at the hearing concerning his conflicting interests. Compare Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Stein v. United States, 313 F.2d 518, 522 (9th Cir. 1962), cert. denied, 373 U.S. 918, 83 S.Ct. 1307, 10 L.Ed.2d 417 (1963); Glouser v. United States, 296 F.2d 853 (8th Cir. 1961), cert. denied, 369 U.S. 825, 82 S.Ct. 840 (1962); Cox v. United States, 309 F.2d 614, 615-616 (8th Cir. 1962) and People ex rel. Lupo v. Fay, 13 N.Y.2d 253, 246 N.Y.S.2d 399, 196 N.E.2d 56 (1963), cert. denied, 376 U.S. 958, 84 S.Ct. 979, 11 L.Ed.2d 976 (1964) with Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) and People v. Anderson, 16 N.Y.2d 282, 266 N.Y.S.2d 110, 213 N.E. 2d 445 (1965). Appellants waived any such right to be present by failing to object to their alleged...

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