United States v. Rosario

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: LEIBELL
• Citation: United States v. Rosario, 147 F.Supp. 434 (S.D. N.Y. 1956)
• Decision Date: 30 October 1956
• Parties: UNITED STATES of America, Plaintiff, v. Raymond ROSARIO, Defendant.

147 F. Supp. 434

UNITED STATES of America, Plaintiff, v. Raymond ROSARIO, Defendant.

United States District Court S. D. New York.

September 26, 1956.

Motion for Rehearing Denied October 30, 1956.

Paul W. Williams, U. S. Atty. for the Southern Dist. of New York, New York City, for United States (Jerome J. Londin, Asst. U. S. Atty., New York City, of counsel).

Raymond Rosario, in pro. per.

LEIBELL, District Judge.

The defendant, Raymond Rosario, hereinafter referred to as the petitioner, filed with the Clerk of this Court on August 15, 1956, a motion under Section 2255, Title 28 U.S.C. to vacate the judgment and sentence imposed on Count Eleven of the Indictment. Petitioner contends that Count Eleven a substantive offense involving the sale of five ounces of heroin on September 15, 1950 was merged in Count One of the indictment conspiracy to sell marihuana, cocaine and heroin, on the grounds that the evidence that sustained Count One also sustained Count Eleven, and that the proof under Count One proved every essential element required for Count Eleven. Petitioner contends that in punishing him with consecutive sentences on the conspiracy and substantive Count Eleven, he has been subjected to double jeopardy in violation of the Fifth Amendment of the United States Constitution.

Petitioner's present motion was filed on August 15, 1956. It was referred to me by Judge Dawson on August 27, 1956, since I was the judge who had presided over the trial of petitioner and fourteen other defendants, and imposed the sentence which petitioner now attacks.

Indictment No. C 135-214 was filed April 27, 1951. It contained eleven counts and named thirty-four defendants. Count One was the conspiracy count and named all the defendants who were indicted and two co-conspirators who were not indicted. They were charged with having conspired "to commit certain offenses against the United States, to wit, to violate Sections 173 and 174 of Title 21, United States Code, and Section 2591(a) of Title 26, United States Code I.R.C.1939". Sections 173 and 174 of Title 21 related to the illegal importation or bringing into the United States of narcotic drugs and their transportation, possession or sale after being imported or brought in. The transportation, receipt, concealment or sale of heroin was illegal under Sections 173 and 174 of Title 21. Cocaine was also covered by those sections. The transfer of marihuana "except in pursuance of a written order of the person to whom such marihuana is transferred, on a form to be issued in blank for that purpose by the Secretary" of the Treasury, was prohibited under Section 2591(a) of Title 26.

Paragraph 2 of Count One of the indictment, stated that it was part of the conspiracy of the said defendants that they would "unlawfully receive, conceal, sell and facilitate the transportation, concealment and sale of certain narcotic drugs known as heroin and cocaine". Paragraph 3 of Count One of the indictment, stated that it was "further a part of said conspiracy that said defendants would unlawfully transfer marihuana * * *."

Four "Overt Acts" were listed after Count One. Rosario was named only in the description of the third overt act which stated that the defendants, Rosario, Mejia and Perez sold marihuana to defendant Zayas on or about June 22, 1950. There were ten substantive counts which followed in numerical order Count One. The Fourth, Fifth and Ninth Counts named Dominick Lessa as the defendant charged. He was a fugitive at the time of the trial and the trial was severed as to him.

The Fourth Count charged Lessa with the sale of one-half an ounce of heroin on or about October 25, 1950; the Fifth Count charged him with the sale of five ounces of cocaine on or about October 18, 1950; and the Ninth Count charged him with the sale of one-half ounce of heroin on or about October 25, 1950.

The Eighth Count charged a defendant, Emilio Roca, with the possession of one-half an ounce of cocaine. Roca entered a plea of guilty.

Petitioner, Rosario, was named in and found guilty under Counts One, Six, Seven, Ten and Eleven of Indictment C 135-214.

Count One was the conspiracy count, hereinabove described.

Count Six charged petitioner and two others Mejia and Perez with the unlawful transfer of four pounds of marihuana to Zayas (a defendant) on or about the 9th day of May, 1950, in violation of Sections 2591(a) and 2600 of Title 26 U.S.C. Section 2600 gave the Secretary of the Treasury the right to delegate certain of his powers under the Marihuana Act, §§ 2590 to 2604.

Count Seven charged petitioner and Mejia with the unlawful transfer of six pounds of marihuana to Ida Batista (named as a co-conspirator but not indicted) on or about the 29th day of June, 1950, in violation of Sections 2591(a) and 2600 of Title 26, U.S.C.

Count Ten charged petitioner and two others Mejia and Perez with the unlawful transfer of one pound of marihuana to Hubbard (a special employee of the Narcotic Bureau) on or about the 1st day of November, 1950.

Count Eleven charged petitioner and two others Alvarez and Perez, who entered pleas of guilty with unlawfully receiving and concealing, selling and facilitating the transportation, concealment and sale of five ounces of heroin on or about September 15, 1950.

Fifteen of the defendants, including Mejia and Rosario went to trial. Fourteen were convicted of the offenses with which they were charged in the indictment.

On June 26, 1951, I imposed the following sentence on petitioner Rosario: Five years on Count One; five years and a fine of $2,000 on Count Six, (the sentences on Counts One and Six to run concurrently); five years and a fine of $2,000 on Count Seven; five years and a fine of $2,000 on Count Ten (the sentences on Counts Seven and Ten to run concurrently with each other, but consecutively to and to begin after service of the sentences on Counts One and Six); five years and a fine of $5,000 on Count Eleven (to run consecutively to and to begin after service of sentences on Counts Seven and Ten).

The total of the sentences imposed on Rosario was fifteen years and the total of fines was $11,000; and he was to stand committed until the fines were paid or he was otherwise discharged by law.

On appeal, the judgment of conviction was affirmed. United States v. Tramaglino, 2 Cir., 197 F.2d 928, 929. The opinion on this present motion assumes a knowledge of what the appellate court said about the evidence in respect to the scope of the conspiracy.

In September of 1953, petitioner made a prior motion under Section 2255 of Title 28, U.S.C. to correct the sentences imposed on him, on the ground that the sentences imposed were in excess of the maximum authorized by law. Petitioner contended in his prior motion that the maximum penalty to which he was subject was that imposed under the conspiracy count, and that there had been a merger of the substantive counts in the conspiracy count. That motion, which involved only questions of law, was denied in an opinion, dated September 14, 1953, in which I stated:

"Nor is there any merger of the substantive counts in the conspiracy count as defendant intimates. Where substantive counts in an indictment cover crimes committed in the course of and in furtherance of a conspiracy, which is also separately charged, the court is empowered to impose sentences on all counts. The rule was stated in Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489 as follows: —

"`It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established. Clune v. United States, 159 U.S. 590, 594-595, 16 S.Ct. 125, 40 L.Ed. 269.'"

Section 2255, Title 28, U.S.C. provides:

"A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, * * *, or that the sentence was in excess of the maximum authorized by law, * * * may move the court which imposed the sentence to vacate, set aside or correct the sentence.

* * * * * *

"The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner."

Although the present motion is somewhat similar to part of petitioner's prior Section 2255 motion, made in September of 1953, I have concluded that I should entertain petitioner's present motion. United States v. Brown, 7 Cir., 207 F.2d 310.

Petitioner attempts to come within one of the exceptions set forth by the United States Supreme Court in Pinkerton v. United States, 328 U.S. 640, at pages 643-644, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489:

"Nor can we accept the proposition that the substantive offenses were merged in the conspiracy. There are, of course, instances where a conspiracy charge may not be added to the substantive charge. One is where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime. See United States v. Katz, 271 U.S. 354, 355-356, 46 S.Ct. 513, 514, 70 L.Ed. 986; Gebardi v. United States, 287 U.S. 112, 121-122, 53 S.Ct. 35, 37, 77 L.Ed. 206, 84 A.L.R. 370. Another is where the definition of the substantive offense excludes from punishment for conspiracy one who voluntarily participates in another's crime. Gebardi v. United States, supra. But those exceptions are of a limited character. * * * It is only an identity of offenses which is fatal. See Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489. Cf. Freeman v. United States, 6 Cir., 146 F. 2d 978."

In support of his motion petitioner mainly relies upon Freeman v. United States, 6 Cir., 146 F.2d 978, and ...