United States v. Sanza

• Decision Date: 02 March 1981
• Docket Number: Crim. No. K-77-0366,Civ. No. K-80-2071.
• Citation: 519 F. Supp. 26
• Parties: UNITED STATES of America v. John SANZA.
• Court: U.S. District Court — District of Maryland

519 F. Supp. 26

UNITED STATES of America v. John SANZA.

Crim. No. K-77-0366, Civ. No. K-80-2071.

United States District Court, D. Maryland.

December 29, 1980.

On Motion For Release Paneling Appeal March 2, 1981.

Russell T. Baker, Jr., U. S. Atty., and Marsha A. Ostrer, Asst. U. S. Atty., Baltimore, Md., for United States.

Joseph Kiel and Burton W. Sandler, Towson, Md., for Sanza.

FRANK A. KAUFMAN, District Judge.

Sanza was convicted in this Court of possession of firearms by a previously convicted felon, in violation of 18 U.S.C. App. § 1202(a)(1), on October 27, 1977 and sentenced on January 12, 1978 to two years' confinement, the maximum possible penalty, subject to 18 U.S.C. § 4205(b)(2). In a per curiam opinion filed July 24, 1979 by the United States Court of Appeals for the Fourth Circuit, that conviction was affirmed. 603 F.2d 219. The Supreme Court denied Sanza's petition for certiorari on March 24, 1980. Following that denial, Sanza sought reduction of sentence under Federal Criminal Rule 35. In connection therewith, Sanza was represented by counsel other than counsel who had earlier represented him, and Sanza's new counsel raised for the first time the contention that Sanza had been convicted on an agreed

statement of facts that I new defense counsel feel, Your Honor, leaves a lot to be desired.

And he Sanza did that for only one reason. He Sanza was practically assured by that attorney the attorney who represented Sanza both at trial and on appeal that he would not serve any time as a result of the conviction in this case, in the event that he did, that there certainly would be a reversal on appeal."¹

This Court has denied Sanza's motion for reduction of sentence because of his prior record and the nature of the offense involved in this case. There presently remains pending before this Court Sanza's habeas corpus petition pursuant to 28 U.S.C. § 2255. In connection therewith, after conducting an evidentiary hearing during which both Sanza and his trial counsel testified, this Court orally found on the record that Sanza had been fully advised by his counsel as to the format and procedure to be followed at his trial on an agreed statement of facts, had knowingly and voluntarily agreed to proceed on such a basis, and had, upon the advice of his trial counsel, so done in order to preserve his opportunity to appeal from the denial of his motion to suppress certain evidence.² It was in connection with that suppression issue only that Sanza instituted his unsuccessful appeal to the Fourth Circuit.

Also, after holding the aforementioned evidentiary hearing, this Court orally found on the record that Sanza's trial counsel did not advise Sanza that he would prevail either in this Court or on appeal upon the motion to suppress and did not advise Sanza that he would not serve time if a conviction resulted in this case.³

This Court, after reviewing the entire record in this case, hereby reaffirms all of its oral findings, holdings and conclusions previously made and stated on the record in connection with the matters discussed hereinabove in this opinion.

During a number of proceedings, this Court has also considered, both in the context of Sanza's unsuccessful motion for reduction of sentence under Federal Criminal Rule 35 and in the context of an orally stated motion made on behalf of Sanza by his counsel for habeas corpus relief pursuant to 28 U.S.C. § 2255, the question of whether Sanza's conviction rested upon sufficient evidence. Additionally, this Court has considered, despite disclaimers to the contrary by Sanza's counsel who entered this case for the first time after the Supreme Court's denial of certiorari, that at least in part Sanza's quest for relief under 28 U.S.C. § 2255 is based upon alleged inadequate representation of Sanza by trial counsel. Before proceeding to discuss the question of whether or not the record contains sufficient evidence to support Sanza's conviction, this Court again addresses itself to the question of adequacy of representation by Sanza's trial counsel and concludes that that representation was more than adequate. There are many instances in the record which indicate the care taken by such counsel.⁴ Further, the record in its totality indicates the pursuit by trial counsel of the only line of defense which he thought was tenable, namely, the effort to suppress evidence without which the Government would rather clearly have not been able to sustain its burden of proving Sanza guilty as charged beyond a reasonable doubt.

From the time of their first appearance in this case, Sanza's present counsel have argued or suggested that it might have been possible for Sanza to have defended at trial on the grounds that the guns involved had not traveled in interstate commerce, that the guns were not operable and that Sanza did not possess the guns. Whether or not the guns were operable is irrelevant and immaterial since operability of the guns is not an element of the offense.⁵ As to the interstate commerce point, the Government needed only to prove beyond a reasonable doubt that Sanza did possess one or more guns which had passed, "at some time, in interstate commerce." Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969, 52 L.Ed.2d 582 (1977).⁶ During the trial on agreed facts, the Assistant United States Attorney representing the Government stated that if the case had gone to trial on a controverted basis, a Special Agent of the Federal Bureau of Alcohol, Tobacco and Firearms would have testified that he (that Special Agent) had "ascertained that neither * * brand of firearms * * * are manufactured in the State of Maryland" and that "therefore, they were transported into the State of Maryland."⁷ Sanza and his counsel both agreed during that trial proceeding that that factual statement was correct.⁸

Insofar as the possession issue is concerned, government counsel stated during the hearing on October 27, 1977 that during the course of a search of "the residence of John Sanza, 17 West Mulberry, basement apartment, Baltimore, Maryland," two Baltimore City police officers found the two firearms which are the subject of the indictment; that during the said search those officers "observed a C and P telephone bill addressed to Mr. Sanza"; that "it did not appear to them the two police officers that anybody else resided in the residence with Mr. Sanza"; and that the two firearms, i. e., one Winchester rifle and one Savage rifle "were found in the hall closet of that residence." The applicable criminal history record of Sanza was also stated by the Assistant United States Attorney during the trial. Additionally, government counsel stated that the police officers had found in the "same closet in which the firearms were found, a cardboard box * * which contained a number of cancelled checks and various other items, all reflecting the name of John Sanza."⁹

At trial, after the Assistant United States Attorney made her statement, trial counsel for Sanza stated that what had been stated by government counsel was "accurate" and that there were no "corrections or deletions, to the facts." Thereafter, this Court asked Sanza "Is that right, Mr. Sanza?" and Sanza replied "Yes, sir."¹⁰ During the sentencing hearing on January 4, 1978, which preceded the original imposition of sentence and the entry of the judgment of conviction from which Sanza appealed to the Fourth Circuit, trial counsel for Sanza indicated Sanza's desire to present "mitigating circumstances."¹¹ Accordingly, the sentencing hearing was continued until a date eight days later. During the hearing on that latter date, this Court, after reviewing the presentence report — about which this Court will comment further infra — at one point became concerned as to whether Sanza was contending that he had not had possession of the firearms in question and stated that if Sanza was so contending, "I am not sure that I would permit the guilty plea to stand in this case."¹²

The presentence report sets forth Sanza's version of the facts in this case as related to Mr. Edward V. Watts, Probation Officer of this Court.¹³ During the sentencing hearing on January 4, 1978, this Court asked Sanza's counsel whether he (such counsel) had seen the presentence report, whether he had discussed its contents with his client, Mr. Sanza, and whether there were any "factual corrections, additions or the like."¹⁴ Trial counsel for Sanza stated that he had discussed the contents with his client and that there were no factual corrections, additions or the like. It is to be noted that Sanza's version of the offense, contained in the presentence report, includes Sanza's admission of possession.

At one or more times to and including the final hearing held by this Court on October 23, 1980, this Court afforded to Sanza the opportunity to take the witness stand to give any testimony which he desired to give concerning the element of possession¹⁵ and/or also offered to Sanza the opportunity to have his trial counsel take the stand and testify with regard to any information which trial counsel had with regard to the element of possession.¹⁶ Counsel for Sanza, during the last hearing in this case on October 23, 1980, objected to having Sanza's trial counsel take the witness stand to give any evidence with regard to what he (such trial counsel) had learned in 1977 concerning the element of possession. That objection was made by Sanza on Fifth Amendment grounds. This Court had and continues to have some question as to whether or not Sanza had not waived his right to object to his trial counsel's testimony, in view of what this Court construes to be an attack by Sanza's new counsel on the adequacy of representation by Sanza's trial counsel.¹⁷ However, this Court on October 23, 1980 sustained Sanza's objection to having his trial counsel testify with regard to the element of possession.

Sanza continues to contend that there was not sufficient...