# Opposition — Natelli v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1778%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 819 ## Text rere ren: | JULI 1977 No. 76-1491 In the Supreme Court of the United States OCTOBER TERM, 1977 ANTHONY M. NATELLI, PETITIONER Vv. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION Wave H. McCree, Jr., Solicitor General, BENJAMIN R. CIVILETTI, Assistant Attorney General, JEROME M. Fei!ty Joseru S. Davies, JR., Attorneys, Department of Justice, Washington, D.C. 20530. INDEX Page ITIL We note moreover. that petitioner's challenge to the sufficiency of the evidence is not cognizable on collateral attack. See, ¢.g.. United States v. Osborn, 415 F. 2d 1021, 1023 (C_A 6) (en banc), certiorari denied. 396 U.S. 1015. The court of appeals’ decision affirming 7 Thus, the district court re}_cted petitioner's claim only after concluding that “{f}rom a review of the evidence in this area, the argument has not gained merit in the ensuing months” (Pet. App. 4c), while the court of appeals rejected the claim in reliance upon its decisions in Meyers v. United States, 446 F. 2d 37, 38 (C.A. 2), and United States v. Granello, 403 F. 2d 337, 338(C.A. 2), certiorari denied, 393 U.S. 1095, which held that “compelling reasons” or “extraordinary cir- cumstances” must be present to justify reconsideration of an issue already determined on appeal. See also Scott v. United States, 545 F. 2d 1116, 1117 (C.A.8), certiorari denied, No. 76-6073, February 22, 1977; Egger v. United States, 509 F. 2d 745, 748 (C.A. 9), certiorari denied, 423 U.S. 842; Stephan v. United States, 496 F. 2d 527, 529 (C.A. 6), certiorari denied sub nom. Marchesani v. United States, 423 U.S. 861; Ugarte-Veizaga v. United States, 452 F.2d 1194, 1195 (C.A. 5)? petitioner's conviction convincingly demonstrates that this ts not a case in which the record is devoid of “any relevant evidence as to a critical clement of the offense charged.” Vachon v. New Hampshire, 414 U.S. 478, 480. The absence of “any relevant evidence” presumably would elevate an insufficiency claim into a constitutional claim rooted in the Due Process Clause, materially affecting access to collateral re- view. ‘ *Since the court of appeals did not conclude that it was barred by res judicata from reconsidering petitioner's sufficiency of the evidence claim, petitioner's allegation of a conflict with the decisions of this Court ‘and of other circuits is insubstantial. In Davis v. United States, 417 US. 333, the Court did not suggest that on collateral attack a court must always give plenary consideration to a claim that had been fully considered and rejected on direct appeal. To the contrary, Devis concerned “the availability of collateral relief from a federal criminal conviction based upon an intervening change in substantive law” ‘id at 334). Indeed. in holding that collateral relief was available in that situation. the Court relied on its statement in Hill v. United States. 368 U.S. 424, 428. that relief under Section 2255 was limited to “exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” Similarly. each of the other cases on which petitioner rehes expressly recognized that the courts of appeals need not 2. Petitioner contends (Pet. 21-27) that the district court erred in failing to hold an evidentiary hearing to determine whether Randell’s subsequent testrmony at the Mullen trials showed that the government's characterization of the Eastern Airlines commitment as “phony” in its opening and closing arguments at petitioner's trial was a misrepresenta- tion. An evidentiary hearing is not required under 28 U.S.C. 2255, however, if the files and records in a case sufficiently show that the motion to vacate sentence is without merit. Fontaine v. United States, 411 U.S. 213, 215. The court of appeals correctly concluded that the files and records showed that petitioner was not entitled to collateral relief (Pet. App. Sa-6a): [Randell] was an admitted swindler and briber who was a hostile witness in the subsequent proceedings. As we have indicated, he was never called to corroborate the defense’s version at Natelli’s trial. His later admissions, if anything, fortify the position of the government that the Eastern commitment was in fact totally fraudulent. It was produced by reason of bribes to Mullen and was accompanied by a “side agreement” consider under Section 2255 a claim that had been rejected on direct appeal unless the ends of justice so required. See Laughlin v. United States, 474 F. 2d 444, 452 (C.A. D.C.), certiorari denied, 412 U.S. 941, Jack v. United States, 435 F. 2d 317, 319 (C.A. 9), certiorari denied, 402 U.S. 933; Tannehill v. Fitzharris, 451 F. 2d 1322, 1324 (C.A. 9), Stephens v. United States, 341 F. 2d 100, 101 (C.A. 10). ‘Petitioner presented this claim in his petition for a writ of certiorari after the affirmance of his conviction. In our brief in opposition to that petition (p. 30), we observed that since petitioner had not raised this argument in the lower courts, “[t}he proper procedure ts for petitioner to his contentions to the district court in a motion for a new trial under Rule 33, Fed. R. Crim. P., or a motion to vacate his sentence under 28 U.S.C. 2255.” This statement, of course, did not indicate that the government believed petitioner's claim to be meritorious or to require an evidentiary hearing. 9 permitting Eastern to cancel on 30 days notice prior to December 31, 1969. Randell in fact pleaded guilty to conspiracy and fraud prior to Natelli’s trial and, as the court found below, the transcripts of the allocutions of Randell and Kelly (a co-defendant) were available to Natelli on trial. These transcripts disclosed the existence of the “side agreement,” making Natelli’s argument that both he and his jury were unaware of this possible flaw in the Eastern commitment ring hollow. There is no claim here of suppression of evidence by the government or perjury by government witnesses. Upon analysis, Natelli’s argument is reduced to the claim that he is entitled to a new trial to produce the testimony of Randell which in our view is at best questionable, was previously available and in any event would not be of any significant assistance to Natelli. Although petitioner asserts that government counsel may have made several misleading statements to the jury in his closing argument, the district court found that “{n]o real contradictions appear” between the prosecutor's summa- tion and Randell’s testimony | | months later (Pet. App. 3c). Furthermore, it is abundantly clear —and petitioner does not dispute— that the summation accurately reflected the proof adduced at petitioner's trial.’ The government's closing argument was therefore unlike that condemned in Miller v. Pate, 386 U.S. 1, and was well within permissible 5A detailed outline of the evidence at trial supporting the govern- ment's version of the facts argued to the jury concerning the Eastern commitment is presented at pp. 61-96 of the government's brief in the court of appeals, a copy of which we are lodging with the Clerk of this Court. 10 bounds. See Donnelly v. DeChristoforo, 416 U.S. 637, 646- 648.° CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. Wape H. McCree, Jr., Solicitor General. BENJAMIN R. CIVILETTI, Assistant Attorney General. Jerome M. Feit, Joseru S. Davies, JR., Attorneys. Jury 1977. *Fontaine v. United States, 411 U.S. 213, Machibroda v. United States, 368 U.S. 487, and Blackledge v. Allison, No. 75-1693, decided May 2, 1977, upon which petitioner relies (Pet. 26), each involved de- tailed factual allegations, not rebutted by the record, that a guilty plea had been unconstitutionally induced —allegations that could only be resolved after an evidentiary hearing and that, if correct, would unquestionably have entitled the defendant to relief under Section 2255. By contrast, an evidentiary hearing was unnecessary here because the voluminous record contained an adequate basis for the district court to determine whether petitioner's allegations were accurate and, if so, whether they would warrant collateral relief from his conviction. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1778%3A3. Public record. Not legal advice.