Petition for Writ of Certiorari — Romano v. United States

Supreme Court brief1972

Ask Donna

What actually matters in this document.

Text

FILE COPY AUG 4 1972

IN THE

Supreme Court of the United States

October Term, 1971

~F2- 199

DOMINICK ROMANO,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

’ PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

HENRY ROTHBLATT

ROTHBLATT, ROTHBLATT

SEIJAS & PESKIN

Attorney for Petitioner

232 West End Avenue

New York, N. Y. 10023

STEPHAN H. PESKIN

on the Brief

TABLE OF CONTENTS

Opinion Below

Jurisdiction 3

Questions Presented

Constitutional Provisions and

Statutes Involved 5

Statement of the Case 6

Reasons for Granting the Writ 32

POINT I:

POINT II:

THE PETITIONER IS

ENTITLED TO A HEAR-

ING ON HIS MOTION

TO VACATE SENTENCE

PURSUANT TO TITLE

28, UNITED STATES

CODE, SECTION 2255. 32

THE IN-COURT IDEN-

TIFICATION OF

CHARLES HEDGES BY

CHARLES BOURBON-

NAIS WAS A DELI-

BERATE MISLEADING

EOI AA MEME INIT SP CE ST

POINT III:

POINT IV:

POINT V;

TABLE OF CONTENTS

OF THE JURY AND

GROSSLY PREJUDICED

THE APPELLANT. 44

THE PETITIONER WAS

DEPRIVED OF THE

RIGHT TO EFFECTIVE

COUNSEL BECAUSE

HIS ATTORNEY WAS |

UNPREPARED TO CROSS-

EXAMINE THE GOVERN-

MENT'S WITNESSES. 55

THE PETITIONER'S

RIGHT TO TESTIFY

IN HIS OWN BEHALF

WAS IMPROPERLY

FRUSTRATED BY THE

TRIAL JUDGE'S IN-

SISTENCE THAT HE

BE TRIED JOINTLY

WITH HIS BROTHER. 66

THE TRIAL JUDGE

SHOULD HAVE GRANTED

PETITIONER'S MOTION

PURSUANT TO TITLE

28, UNITED STATES

CODE, SECTION 144,

RAPP REIL AE OMEN LEE LA IY NEE IN ENE EI RR IT LS MOMENI LOGAN

Se a,

iii

TABLE OF CONTENTS

Page

AND RECUSED HIM-

SELF. 71

Conclusion 81

INDEX TO APPENDIX

Memorandum Opinion of Judge

MacMahon, District Judge,

Southern District, N.Y. A-1

Opinion of Court of Appeals

Second Circuit A-45

Denial of Rehearing, Court

of Appeals Second Circuit A-53

Sixth Amendment, 28 U.S.C..

2255, 28 U.S.C. 144 A-55

Diagram A-63

ODA NW IONE ARNG 1 PRINT NEL PAE CNP AINA 2ST RE IN

‘a ee eae eet

TABLE OF AUTHORITIES

CASES:

Pages

Burris v. United States

430 F. 2d 399 (7th

Circ. 1956) 39

Gilbert v. California

388 U.S. 293 48

Glasser v. United States

315 U.S. 60 63

Machibroda v. United States

368 3.8. 487 =. 41

Pettway v. United States

216 F. 2d 106 (6th

Circ. 1954) 32

Rosen v. Sugarman

357 F. 2d 794 (2nd

Circ, 1966) Tle 72

Simpson v. Teets

353 U.S. 926 37

Smith v. United States

259 F. 2d 125 (9th

Circ. 1958) 37

aH OPENS TREND MT IR AMAL! IT LS REI RD IN IATINARA AA IE Ea 2ORR

TABLE OF AUTHORITIES

Stovall v. Denno

388 U.S. 218

United States v. Armone

363 F. 2d 385 (2nd

Circ.) cert. denied

385 U.S. 957 (1966)

United States v. Cianchetti

315 F. 2d 584 (1961)

United States v. DeRosier

229 F. 2a 599 (3rd

Cire. 1956)

United States v. Grinnel

Corp.

384 U.S. 563

United States v. Guanti

421 F. 2d 792

United States v. Wade

388 U.S. 21

Wolfson v. Palmieri

396 F. 2d 121 (2nd

Circ. 1968)

RDI IODINE

Pages

71, 72

47, 48

71, 73

TABLE OF AUTHORITIES

Pages

Yates v. United States

316 F. 2d 718 (10th

Cire. 1963) 33

CONSTITUTIONAL AMENDMENTS :

Sixth Amendment 5

STATUTES :

21 U.S.C. 173 6, 23

21 U.S.C. 174 6, 23

28 U.S.C. 144 5, 71

28 U.S.C. 1254 (1) 3

28 U.S.C. 2255 4, 5,

31, 32,

36, 39,

i. See ¥ as IDOE LEI DI SS GEE Ee

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1971

DOMINICK ROMANO,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

The Petitioner, Domonick Romano,

respectfully prays that a writ of cer-

tiorari issue to review the judgment and

| opinion of the United States Court of

— 4S BPE oT A Th A rm

AIOE LLL SETI CLI E LEE LORE LAE ETS . ;

Appeals for the Second Circuit entered

on May 30, 1972.

OPINION BELOW

The memorandum opinion of the

District Court of the Southern District

of New York by Judge McMahon, which is

not reported, was rendered on a motion

to vacate sentence. A copy of that

opinion is annexed hereto at pp. A-l -

19 of the Appendix. The Court of Ap-

peals for the Second Circuit rendered

an opinion which has not as yet been

reported. A copy of that opinion is

appended hereto at pp. A20-22.

A petition for rehearing was

made to the United States Court of

ee ~~

+s : S PRT EARS

LSPA NT ETE PE PITS IN RAB RR NEAL TE

Appeals for the Second Circuit. The

petition was filed timely on June 13,

1972. The petition for rehearing re-

quested, among others, that the said

Court of Appeals rehear the matter en

banc. This application was denied on

July 3, 1972. A copy of that opinion

is appended hereto at pp. A-23.

JURISDICTION

The jurisdiction of this court

is invoked under Title 28 of the United

States Code, Section 1254(1) which pro-

vides for review by the Supreme Court:

"By writ of certiorari

upon the petition of any

party to any civil or

criminal case before or

after rendition of judg-

ment or decree."

ony a pecerame er Cats een -

. Peer roca ss RR OER ST ERE OTE I Te ae PONE ay eed OP OT, Oo

RAT aT a eS *

QUESTIONS PRESENTED

The questions presented are:

1. Was the Petitioner entitled

to a hearing on his motion to vacate

sentence pursuant to Title 28, United

States Code, Section 2255.

2. Was the in-court identifi-

cation of Charles Hedges by Bourbonnais

a deliberate misleading of the jury and

grossly prejudicicial to the Petitioner,

3. Was the Petitioner depriv-

ed of the right to effective counsel

because he was unprepared to cross-

examine the Government's witness.

4. Was the Petitioner's right

to testify in his own behalf improper-

RAAT TE LPR N MT NRT ITY MY NEN VR ROY EEO ON A AI IN

vane pais i ; ma

ly frustrated by the trial judge's in-

sistence that he be tried jointly with

his brother.

5. Should the trial judge

have granted Petitioner's motion pursu-

ant to Title 28, United States Code,

Section 144, and recused himself?

CONSTITUTION PROVISIONS

AND STATUTES INVOLVED

The pertinent portions of the

Sixth Amendment of the United States

Constitution and 28 U.S.C. 2255 and

28 U.S.C. 144 which are involved are

set forth in the Appendix at pp.

A-24-25.

LGA, dan ci an aaa Iii Daas Ss SAS hte ea RI

STATEMENT OF THE CASE

Petitioner was found guilty at

& jury trial of conspiracy to import

narcotics in violation of Sections 173

and 174 of Title 21, United States Code,

on April 15, 1969. That trial arose out

of an indictment handed down in 1964

that charged 28 persons, twelve named

as defendants and 16 named as co-con-

spirators. The first jury trial was

held in 1965 before Judge Bonsal for six

of the major Defendants, in which four

were convicted. United States v. Armone,

363 F.2d 385 (2nd Circ.), cert. denied,

385 U.S. 957 (1966).

The Government had charged in

the indictment that the conspiracy

_— ROMO REOPENS OE BNI I EM RL SEE LELG NS ETE TEE LT EE TTR

continued in existence from 1956 to

1964. It allegedly consisted of three

subgroups: the exporters, the receiv-

ing agents and the wholesalers. (See

diagram in Appendix, pp. A-26.)

The Exporters

There were allegedly three

separate sets of European exporters,

each of whom had their own courier or

couriers. The first was the Aranci

brothers of Marseilles. Their courier

was Clarence Aspelund, a ship's baker

employed by American Export Lines. The

second exporter was Felix Barnier of

Paris. His couriers were Charles Bour-

bonnais, a flight purser for Trans-

World Airlines, and Maurice Rosal, a

Guatamalan ambassador. The third ex-

porter was unnamed. The couriers for

this individual were Georges (a/k/a

Pierre) Roulet and Georges Henripierre,

both employees of Air France.

The Receiving Agents and Wholesalers

The Government alleged that

the original deliveries were made to

Joseph Cahill. Later, Cahill employed

Charles Hedges to accept delivery for

him. Some time before September 1959,

the exporters fired Cahill and substi-

tuted Nicholas Calamaris as receiving

agent. The import group alliegetiy in-

cluded Joseph Armone, Stephan Grammauta

and Arnold Romano, the Petitioner's

brother. The Petitioner himself,

Dominick Romano, was not alleged to

be a full-fledgec member of the im-

port group. Along with one Frank

Sherbicki, he was merely alleged to

have “performed services" for the

import group.

Wholesale Distributors

The wholesale group alleged-

ly consisted of Vincent Pacelli and

Michael Ricucci. Carmine Guanti re-

ceived narcotics on behalf of the

wholesalers from the importers.

The Overt Activities

The Government alleged that in

1956, Clarence Aspelund, the courier

of the Aranci brothers, met Joseph Ca-

hill in New York, and it was agreed

that Aspelund would begin deliveries

to Cahill. Aspelund began to bring

the heroin to his home, where Cahill

would pick it up.

The Petitioner was implicated

in the conspiracy by Hedges' testimony.

According to his testimony, sometime

in 1958 Cahill met Charles, and both

men took rooms in the Vanderbilt Hotel.

From there they dealt with a

In the course of that transaction ,money

was obtained from Petitioner's brother,

Arnold Romano. Hedges received several

a PREG TOS Len REEL GRILL TP POG ER

LT TT HI 9 Sa

packages from Aspelund which were de-

livered to Charles Guanti.

Deliveries from Roulet

The Government alleged that,

in June 1958, Hedges and Cahill met

Georges Roulet at Rockefeller Center,

where Roulet gave Cahill a package.

Three weeks later, Cahill allegedly

reserved a suite at the Fifth Avenue

Hotel, where Roulet delivered two

large glassine bags of white powder.

Cahill left Hedges in the room with

the package. In the Petitioner's

trial, Hedges testified that Dominick

Romano merely came into the room,

punctured one of the packages, took

aa mae

a sample of the white powder, and left

after placing it into two envelopes.

However, in the prior Armone trial,

Hedges testified that he himself re-

ceived the samples and that the Peti-

tioner, Dominick Romano, took posses-

sion of the large glassine bags.

Following that incident, Pe-

titioner's brother, Arnold Romano,

Cahill, Hedges, Henripierre and Roulet

were involved in various dealings.

Hedges met Roulet ten, twelve or thir-

teen times during which he paid Roulet

for the delivery of packages. Hedges

also met Henripierre six or seven

times. Arnold Romano and Cahill were

also involved in several dealings with

a See FRAIL RSE TT AERIS ION IRN IS

LASSIE, SANA RH amy

Hedges. They picked up two (2) suit-

cases at Grand Central Station, and

Hedges helped Arnold Romano make two

package deliveries. |

Sometime in December 1958,

Hedges was again staying at the Commo-

dore Hotel, awaiting a delivery from

Henripierre. Hedges testified that

Dominick Romano, the Petitioner, came

to the room where Hedges allegedly told

him, "You are in a trap here! This guy

could be followed and you are just

trapped. You can't get out of it."

Petitioner allegedly left but later re-

turned. Hedges then told him, "Get the

hell out of here! The guy didn't come.

They will think we are running a book-

making ring here, the house detective

or something." It was in Hedges’ testi-

mony that Dominick Romano replied “that

he was going to take this over, you

know, he was going to meet these guys

in the hotel from now on, you know."

Hedges further testified that

sometime in 1959, he and Joe Cahill

went up to East Harlem, because Pacelli

and Ricucci wanted to see Cahill. Hedges

testified that Pacelli and Ricucci had

related to him, "Dom, he comes up with

a broad sitting in the car, and he hands

me a package right on the middie of

Pleasant Avenue and 117th Street on

116th Street."

Deliveries from Charles Bourbonnais

Back in July or August 1957,

Bourbonnais had arranged to meet Cahill

in the Plaza Hotel. After identifying

themselves, Bourbonnais allegedly ar-

ranged to and did on several occasions

deliver packages to Cahill. Bourbon-

nais testified that they also had used

a meeting place in Queens and met alto-

gether 20, 25 or 30 times over a period

of a year to a year and ahalf. He tes-

tified that the last delivery was made

to Cahill no later than the early part

of 1959.

Bourbonnais testified that he

met Hedges around the early part of

1959, at about the same time that he

stopped seeing Cahill. Bourbonnais

had arranged to meet Cahill on 55th

em ex ee

Street and First Avenue, but Hedges

appeared instead, telling Bourbonnais,

"I am coming in place of Joe." Hedges

got into the car and gave Bourbonnais

a small sum of money. Then, Hedges

met Bourbonnais two or three weeks

later at LaGuardia Field in the air-

lines parking lot. According to his

testimony at the Appellant's trial,

peusheunats gave Hedges two (2) large

suitcases and Hedges gave Bourbonnais

$100,000.

At the trial, Bourbonnais

expressly stated that he had been given

three (3) suitcases on each of two oc-

casions by Gilbert Coscia, a named co-

conspirator. On the first occasion,

he drove up to the Park Chambers Hotel,

and the bellhop brought out the suit-

cases. On another oomaton, Coscia and

Bourbonnais drove to Pennsylvania Sta-

tion and removed three (3) suitcases

from a locker where Coscia had placed

them. Bourbonnais testified that he

gave one suitcase to Cahill and the re-

maining two to Hedges at their respec-

tive meetings. The other ‘three suit-

cases he gave to a new agent, one Ni-

cholas Calamaris, at yet another ex-

change. However, Bourbonnais testi-

fied at the Armone trial that, of the

three suitcases he first received from

Gilbert Coscia, "two suitcases I gave

to Cahill and one of them I took pac-

kages out that were wrapped up in three

or four kilo packages: and upon instruc-

tions from Mr. Barnier, according to

the amount he would receive in exchange,

he would say, 'Give me so many packages,

so many kilos.'

"Q. This is Cahill.

"A. Yes, sir, this is Cahill."

Bourbonnais further testified

chat he had previously told narcotics

agents that he gave all three suitcases

from that first delivery from Coscia

to Cahill in bulk.

Bourbonnais also testified that

at one time, although he could not re-

member when, he had testified that he

took all three suitcases home and doled

them out piecemeal to Cahill.

Bourbonnais later admitted that

he had previously told the prosecutors,

in answer to their questions, that he

gave one suitcase in bulk to Cahill.

The other two he doled out periodical-

ly on instructions from Barnier. He

stated also that he delivered two suit-

cases to Calamaris in bulk; 1 suitcase

to Calamaris in piecemeal fashion,

On October 3, 1960 Bourbonnais,

Calamaris and another man named Tardit-

ti met Rosal at 72nd Street and lLexing-

ton Avenue. They were arrested by fe-

aE eee LEON LOE LTTE IE

deral agents, who found 52 kilos of nar-

cotics in the trunk of Rosal's taxi.

The Prosecutions

Charles Hedges and Joseph Cahill

were prosecuted in Connecticut in 1961.

Cahill fled after the beginning of trial

and was tried in absentia. Charles

Bourbonnais testified at the trial but

was unable to give evidence against

Hedges. Hedges and Cahill were convict-

ed, and Hedges received a sentence of

15 years in prison. The convictions

were affirmed by the Court of Appeals

for the Second Circuit in United States

v. Cianchetti, 315 F. 2d 584 (1961).

Narcotics agent Thomas Dugan,

nes AT PO EN IERIE REY MA FSG Tn

who was in charge of the investiga-

tion of the case of Charles Bourbon-

nais and was present at the arrest

and trial of Charles Hedges, visited

Hedges in prison and questioned him.

Subsequently, Hedges" appeal bond was

lowered and Hedges was released. Du-

gan and Hedges met many times while

Hedges was free. His conviction was

affirmed and Hedges was reincarcerated.

However, his attorney made an appli-

cation itor reduction of sentence and

the trial judge, Judge Timbers of the

United States District Court for Con-

necticut, reduced the sentence to five

years.

Early in 1962, Charles Bour-

bonnais was transferred from Danbury

Federal Penitentiary to California,

but he was brought back to testify at

the Sachs-Mazza trial.

At this time he was brought to

the office of Assistant United States

Attorney James Tendy. Bourbonnais was

asked to identify Charles Hedges in a

face-to-face confrontation but was un-

able to do so. Finally, Hedges told

him who he was and related a story of

their meeting.

One month after the Grand Jury

handed down an indictment in the pre-

sent case, Bourbonnais' sentence was

commuted by the President.

The Indictment and Trial

The indictment obtained in 1965.

charged 28 individuals with conspiracy

to import narcotics in violation of

§§173 and 174 of Title 21, United States

Code.

Dominick Romano, the Petition-

er, was not even arrested until 1968.

At that time, the Petitioner was 50

years old, an honorably discharged ve-

teran of World War II, and had never

previously been arrested. He was

brought to trial on March 3, 1969 with

his brother, Arnold Romano, Carmine

Guanti, and Frank Sherbicki. Trial was

held before Hon. Lloyd F. MacMahon in

the Southern District of New York. Mi-

chael Querques, retained counsel of

Arnold Romano, Petitioner's brother,

was unable to appear at that time, be-

cause he was unexpectedly involved in

a New Jersey trial. Judge MacMahon, in

full knowledge of the unusual and un-

controllable circumstances which caused

the conflict, refused to delay the case

and appointed David Markowitz, Esq. as

Arnold Romano's trial counsel. In the

strategy contemplated jointly by defense

counsel, Querques was to have carried

the major burden at trial. Therefore,

his unavailability left the other de-

fense-team attorneys relatively unstu-

died and unprepared, particularly for

cross-examination in a case of such fac-

tual complexity.

James LaRossa, Esq., counsel for

Dominick Romano and Mr. James Hanrahan,

counsel for Carmine Guanti, expressly

stated to the court that it had been the

agreement among counsel that Mr. Querques

would conduct the important cross-examina-

tion of Charles Hedges and that his ab-

sence left the defense unprepared to pro-

ceed in this regard, and Mr. Friedman,

counsel for Frank Sherbicki, also joined

in the motion.

Arnold Romano refused throughout

the trial to allow Mr. Markowitz to re-

present him and insisted upon standing

mute. In light of Arnold Romano's lack

of counsel and given the additional

fact that the Government intended to

introduce evidence of flight to avoid

prosecution against Arnold Romano,

Petitioner's brother, Petitioner's

attorney, Mr. LaRossa, moved alterna-

tively for the severance of Dominick's

brother, Arnold Romano, or the sever-

ance of Dominick Romano, the Petitioner.

The motions were summarily denied from

the bench.

Jury Deliberation

The jury commenced deliberations

at 12:37 P.M. on March 13, 1969. At

4:00 P.M., the jury returned and reques-

ted that it be recharged as to the three

elements of conspiracy which Judge Mac-

Mahon had previously given them. The

jury resumed deliberations at 4:05 P.M.

The jury returned at 6:35 P.M.

and requested a copy of overt acts 10

and 11, as they appear in the indict-

ment, and two parts of Charles Hedges'

testimony. Specifically, the jurors

wanted to hear Hedges' testimony re-

garding (1) Carmine Guanti's receipt

of packages and dates thereof, and (2)

Domonick Romano's delivery of the pac-

kages when in a car with a girl and

dates thereof. The jury resumed deli-

beration at 6:55 P.M,

At 9:00 P.M. on March 13, the

prosecution made application for a

clarifying instruction to be given to

the jury with respect to the overt act

requirement. Mr. Leisure, for the

Government, sought to have the jury

charged that the overt act requirement

was satisfied if "some overt act was

performed by any coconspirator or any

member of the conspiracy within the

period of limitations” and, further,

that the overt act committed need not

be one charged in the indictment. The

court refused to give this clarifying

instruction, stating that he would not

give the jury the little push prosecu-

tion obviously wanted.

At 9:40 P.M. the Judge seques-

tered the jury for the night. at 12:20

P.M., March 14, the jury was brought

back to court. The jurors requested

to have read Mr. LaRossa's (Petition-

er's counsel) summation which the court

refused to give them. At this time,

Judge MacMahon gave the jury a

Clarifying instruction as to

overt acts. He instructed the jury that,’

once the Government proved that the

defendants knowingly joined in a con-

spiracy, "it is not necessary for the

Government to prove that a defendant

himself did anything or that he ever

committed an overt act ... (the Defen-

dant) ... is bound by it, if it was

done by a coconspirator, any other mem-

ber of the conspiracy in furtherance

of the objectives.

"The two overt acts here, you

will see if those were done by any mem-

ber of the conspiracy, not whether they

were done by any of these defendants on

trial. That isn't the question.

"Has the Government proved be-

yond a reasonable doubt that they were

done by any member of the conspiracy?"

The jury resumed deliberations

at 12:25 P.M. The jury returned at

12:30 P.M. with a verdict of guilty as

to all four defendants.

On April 15, 1969, Judge Mac-

Mahon sentenced Dominick Romano to 20

years in prison, the maximum penalty

and a $5,000 fine. Appeal was taken to

ERPS Ie a ea

ee em

the Court of Appeals for the Second Cir-

cuit, and the convictions were affirmed

in United States v. Guanti, 421 F. 24

792. A petition for certiorari was de-

nied by the ougcenn Court on October 12,

1970.

Petitioner filed a pro se peti-

tion to vacate sentence pursuant to §

2255, Title 28, United States Code. The

petition was denied by Hon. Lloyd F.

MacMahon on January 5, 1972. This ap-

peal is taken from that decision.

Se aah a a) eS ad aE ae

Ks Pe RN en we een Pee

REASONS FOR GRANTING THE WRIT

THE PETITIONER IS ENTITLED

TO A HEARING ON HIS MOTION

TO VACATE SENTENCE PURSUANT

TO TITLE 28, UNITED STATES

CODE, SECTION 2255...

28 U.S.C. 2255 reads in part:

",..unless the motion and the

files and the records of the case con-

clusively show that the prisoner is en-

titled to no relief the court shall...

grant a prompt hearing, determine the

issues and make findings of fact and

conclusions of law with respect thereto."

A hearing is required on a

motion to vacate sentence pursuant to

28 U.S.C. 2255 whenever issues of fact

are presented. Pettway v. United

$e ELA ILI BRET ET, 07 eR ES AR I EAD SC

States, 216 F. 2d 106 (6th Cir. 1954);

Yates v. United States, 316 F. 2d 718

(10th Circ. 1963).

In the present case, Petitioner

claims that his conviction was obtain-

ed through the knowing use of perjury

by the prosecution. In contract to

the Petitioner, who has never been ar-

rested or convicted and who has served

his country, the witnesses who testi-

fied against him are confessed narco-

tics smugglers.

Charles Hedges, the primary

witness against Appellant, has a crimi-

nal record dating back to the time he

was 13 years old. At 14 he was incar-

cerated for two years and eight months

in the New York State Training School.

Hedges has been separately convicted of

assault on a police officer, several

burglaries, and possession of a weapon

without a license.

Hedges originally received a

sentence of 15 years in jail and a

$10,000 fine in connection with a plea

of guilty to violations of the Federal

Narcotics Laws. However, that sentence

was reduced to five years imprisonment

and Hedges was paid a $3,000 reward through

the intervention of the United States

Attorney following Hedges' agreement to

testify at the trial of Dominick Romano

and in a previous narcotics trial (U.S.

v. Armone).

DRIES EOS

Charles Bourbonnais is a con-

fessed perjurer. Boubonnais has admit-

ted that he lied to the grand jury, that

he lied to the United States Attorney

and that he concealed evidence from both

the grand jury and the United States

Attorney. In his petition to the Presi-

dent of the United States for commuta-

tion of sentence, he swore that, within

a few days of his arrest, he had decided

to cooperate with the United States Go-

vernment; yet, he continued to lie, con-

ceal facts and take the Fifth Amendment

until 1965, fully five years after his

arrest.

Mr. Bourbonnais was originally

sentenced to nine years imprisonment,

and his sentence was reduced to time

served after four years, through the

intervention of the United States Attor-

ney, following Bourbonnais' agreement

to testify.

Both these witnesses, therefore,

had abundant motives to tailor hee

testimony in accordance with the de-

sires of the United States Attorney,

and both were significantly rewarded

for their efforts in having testified

accordingly.

An allegation under Section

2255 that the prosecutor knowingly used

perjured testimony and that the testi-

mony had a ritual effect on the verdict

is a sufficient ground to entitle Peti-

2 ELE EES LE NS OS MSL

: va EIR SOE, oar ¥ 3

OR ok ee =

tioner to a hearing upon the charges.

Smith v. United States, 259 F. 2a 125

(9th Circ. 1958); Simpson v. Teets,

353 U.S. 926 reversing 239 F. 2d 890

(9th Circ. 1956) and United States v.

Derosier, 229 F. 2d 599 (3rd Circ.

1956).

The Petitioner-Appellant al-

leged that both witnesses against him

committed perjury. There can be no

Goubt that the testimony of these two

witnesses had a vital effect on the

verdict as to the Petitioner, since only

one of them made any allegations what-

soever against Dominick Romano and the

other testified falsely to enhance the

credibility of the former. The untruth

LAE EWN HRY DARI PME ME TTI RAK OLN rk

of the testimony was known to the pro-

secutor and was knowingly used or de-

monstrated on the next point. The al-

legation is clearly not "frivolous" in

light of the stuSecions of the witnesses

themselves. Their character, the tes-

timonial rewards, and the minimal reli-

ability of informants have always been

considered in narcotic cases to be

treated with grave suspicion and doubt.

As a basis for its decision,

the lower court characterized the Pe-

tioner's prose petition as conclusory,

speculative and lacking in all specifi-

city. The Court of Appeals accepted

this basis, saying, "No evidence of per-

jury is noted and no false testimony is

cited."

This decision is in conflict

with the holding of the Seventh Circuit

Court of Appeals regarding specificity

of a Section 2255 petition as announced

in Burris v. United States, 430 F. 24

399, 402 (7th Cire. 1970): "It is

difficult in many instances to require

great specificity and persuasion in a

Section 2255 petition.. Where, as here,

the allegations involve factual matters

Outside the record and beyond the ready

knowledge of the district judge, sum-

mary denial of a petitioner's allega-

tions is questionable."

Petitioner alleged that the en-

tire testimony of both witnesses against

- > * perry C\ oraey

— . eens wenger Sh i Fae: TO RNY PROP COME, ” *

POLE TSO, LOE RR ORI EY II

——

him were replete with perjurious state-

ments and, in particular, all testimony

impiicating the Petitioner and the iden-

tification of Hedges by Bourbonnais was,

of necessity, perjurious. The paucity

of such references makes ita simple

matter to determine which statements

the Petitioner claims to be false.

Only the testimony of Charles

Hedges implicated the Petitioner; thus

it would be difficult to determine from

the record alone that his statements

were perjurious. Contradictions and un-

truths could only be proved by compari-

son with other evidence such as testi-

mony in prior trials and ia enn si-

tuations, by the witnesses. This re-

OP RSDRY OHMS ERIN UNSEAT TOMA TAN MRE Gon ANN RAE MANOS

quires a hearing where new -_ addition-

al testimony may be introduced to prove

perjury by Hedges and Bourbonnais. Mr.

LaRossa, Petitioner's attorney in the

district court trial, was not prepared

to elicit such testimony and provide

such evidence at the trial as explained

fully in Point III.

In considering such a situation,

the Supreme Court said in Machibroda v.

United States, 368 U.S. 487, 494-495:

"[T]he factual allegations contained

in the petitioner's motion and affida-

vit, and put in issue by the affidavit

filed with the Government's response,

related primarily to purported occur-

rences outside the courtroom and upon

which the record could, therefore, cast

no real light. Nor were the circun-

stances alleged of a kind that the Dis-

trict Judge could completely resolve by

drawing upon his own personal knowledge

and recollection." |

The Petitioner here is a middle-

aged World War II veteran with a pre-

viously unblemished record. However,

the length of his sentence is such that

he may never again be a free man. His

conviction was based on the testimony of

two men of admittedly criminal character.

Significantly, that testimony was admit-

tedly in major conflict with even prior

testimony of the same witnesses. The

Petitioner knows that only the perjury

_ —

ESA RSE LOLOL LE EI TREAD A SEN

SHAR EGG DA LTE EE IM PROG SPA E PGI TT

of these two men, not any guilt on his

part, stands between him and freedon.

All he now seeks is an opportunity to

testify - which he never actually had -

and to demonstrate and prove the ex-

tent of the perjury as well as to prove

his innocence.

In view of the age and record

of the Petitioner, the severity of the

punishment given him, the statements of

the witnesses themselves regarding their

previous testimony, and the Significant

consideration given these witnesses by

the United States Attorney, a hearing

is clearly mandated in the interests of

justice to determine whether perjury,

among other injustices, is in fact why

NPY EMEA ELNINO ERT OL NARI NESE NL BOLE AT, TE TI

Petitioner Dominick Romano was and is

incarcerated. The preservation of the

integrity of the factfinding process

should, standing alone, constitute suf-

ficient cause for the holding of such

a hearing.

POINT II

THE IN-COURT IDENTIFICATION

OF CHARLES HEDGES BY CHARLES

BOURBONNAIS WAS A DELIBERATE

MISLEADING OF THE JURY AND

GROSSLY PREJUDICED THE APPEL-

LANT.

Charles Bourbonnais testified

at the trial that he twice met Charles

Hedges and on the second occasion made

a delivery of narcotics to him. The de-

livery involved an exchange of over

$100,000. Bourbonnais' identification

immeasurably enhanced the testimony of

Charles Hedges. It allowed the prose-

cution to present Hedges as the next

link in a conspiratorial chain leading

to Dominick Romano. The entire case’

of the prosecution hangs beautifully

together if the witnesses had readily

identified one another. This progres-

sion fails disastrously if one witness

is unable to identify the other, as a

doubt must be cast on their crecibility

and their ability to recollect accurate-

ly.

Charles Bourbonnais identified

Hedges as the man to whom he made a

large delivery of narcotics for which

EPA SLI LE oh RETENTION

—

he was paid $100,000. He gave a complete

and convincing narrative of the events,

first claiming to recognize the name

Charles Hedges, and later to recognize

a picture of Hedges. His testimony thus

appeared as an accurate and total recol-

lection. A very different impression

indeed might have been made if Bourbon-

nais had testified that, in truth, he

could not independently recognize either

the name or the face of Charles Hedges

and from 1960 to 1964, although shown

Hedges' picture on many occasions by

Agent Dugan, as was his solemn and sworn

testimony at the Armone trial. Unfortu-

nately, the only defense attorney who

might have been able to confront the

PLE RP aE Re ae it

witness with these prior inconsistencies

was not able to participate in the trial,

as is explained in the next point.

The Supreme Court has frequent-

ly ruled that a one-to-one pretrial con-

frontation of a witness and a defendant,

in which the accused is identified ei-

ther expressly or by suggestion to the

witness, will taint the in-court identi-

fication of the defendant by that wit-

ness. U.S. v. Wade, 388 U.S. 218, Sto-

vall v. Denno, 388 U.S. 293. Similarly,

any pretrial confrontation between wit-

ness and defendant at which the iden-

tity of the defendant is suggested to

the witness may invalidate an in-court

identification if no independent ground

of identification is proved. Gilbert

v. California, 388 U.S. 263; U.S. v.

Wade, supra. It is inconceivable that

the suggestiveness of one "witness" re-

lating the events of meeting to another

"witness" cannot be recognized by the

Lower Court.

The court below misunderstood

Petitioner's argument, construing it

to be that he was denied counsel at an

identification procedure but the argu-

ment actually is an extension of the

rationale which formed the basis of the

Wade decision. That rationale was that

impermissibly suggestive confrontation

cements the identification in the mind

of the witness and any later identifi-

cation is necessarily colored by this

suggestive confrontation. (388 U.S. 229).

The psychological principle applies no

less to an identification of one wit-

ness by another. The only questions

are whether the Defendant has a right

to be protected from the effects of such

confrontations and, in the instant case,

more importantly, whether he was preju-

diced thereby.

The presentation of identifica-

tion evidence is the same as the presen-

tation of any other evidence. The same

demands for truthfulness must be ap-

plied. The testimony of Charles Bour-

bonnais deliberately misled the jury.

Independent of the confrontation in the

PE APO SSRAITE MTS AIRE LR STR ARG OIG PEST PA IE

prosecutor's office, Bourbonnais could

not recognize Hedges. Yet, at trial

he said he recognized the name Charles

Hedges and identified his picture, some-

thing he could not do before the meet-

ing in Tendy's office, leading the jury

to believe something which was clearly

not true--that Bourbonnais remembered

Charles Hedges as the man to whom a

large delivery of narcotics was made.

Such tactic improperly lent credibility

to both Bourbonnais and Hedges and un-

avoidably added new dimensions unfavor-

able to the Petitioner in the eyes of

the jury. Thus, the prosecution was

permitted to structure false and inac-

curate evidence which intentionally led

PRE ARNT SL IY ELLER GOMER LENE ETE TERE PE

: os Se a =

a See

the jury to draw incorrect inferences.

Any question of the sufficiency

of prejudice to the Petitioner Dominick

Romano may be resolved by an analysis

of the importance of Charles Hedges in

linking Romano to the overt acts al-

legedly committed after the running of

the Statutue of Limitations. Hedges

is the only figure on this side of the

Atlantic common to all the conspirators

charged as "importers." The Government

and this Court held, in its decision

affirming the conviction, 421 F. 2nd

799, that there was but one import group

consisting of different members, like

a "theatrical performance in which many

actors enter upon the stage to play

ROI

RO es Saeed Gs cS ae ad

their assigned roles and, having ful-

filled their parts, they withdraw."

421 F. 2d at 799. This Court charac-

terized Calamaris as a mere link, the

change of which would not create sepa-

rate conspiracies.

Even accepting the Court's

single-play-single-conspiracy analogy,

it remains apparent that the Petitioner

was prejudiced by inappropriate proce-

dures. If the respective regimes of

Cahill and Calmaris may be characterized

as Acts I and II of the "single conspi-

racy" play, then in the interlude be-

tween the two, the Statute of Limita-

tions descended like the curtain and the

1963 Grand Jury found no indictment

Veen, 2S

iT) Se eee I ere oF ae

PMs TAL ISVS TIN TIT LENSE TI EEA RI, STON TEN

against Petitioner. With the excep-

tion of Hedges, who appeared in both

Acts I and II, the identity of the ac-

tors was different at the American Re-

ceiving Agents level. Hedges' only

testimony against the Petitioner linked

Dominick Romano with Cahill in Act I.

Simply because Hedges appeared after

the Statute of Limitations does not

pull Cahill and his associates onto

the stage in Act II and subject them

to possible prosecution.

However, because Hedges is the

only possible link between the prose-

cuted conspiracy and Dominick Romano,

it is obvious that any testimony what-

soever as to Hedges' role and activi-

ties is of vital concern to the Appel-

lant. As Bourbonnais' testimony implies

that Hedges is the conspiring and con-

tinuing link between the Cahill group

and the Calmaris group, the Petitioner

was most directly prejudices by any

falsification of evidence therein. Just

as Bourbonnais was permitted to contra-

dict his own prior sworn testimony and

"buttress" the Government's case, so

was the jury misled and the Petitioner

improperly convicted.

An evidentiary hearing will prove

that a 1963 Grand Jury failed to find

an indictment against the Petitioner.

However, in 1964, Bourbonnais was pre-

pared to give perjured testimony in ex-

PSE 2 ee

change for his freedom and, thus, an

indictment was found against Petition-

er.

POINT III

THE PETITIONER WAS DEPRIVED OF

THE RIGHT TO EFFECTIVE COUNSEL

BECAUSE HIS ATTORNEY WAS UN-

PREPARED TO CROSS-EXAMINE THE

GOVERNMENT'S WITNESSES.

Michael Querques, the retained

counsel of Arnold Romano, Petitioner's

brother, was unable to appear when the

trial began. Mr. Querques-was unexpec-

tedly on trial in New Jersey. The New

Jersey case had been delayed by a res-

training order issued by the Third Cir-

cuit Court of Appeals on January 7, 1969.

The full appeal on that matter was ar-

gued on February 7, 1969, twenty-four

days before the proposed trial date.

At 3:00 P.M. on February 28, 1969, the

Friday before both trials were sche-

duled to begin, the Third Circuit is-

sued an opinion adverse to the New Jer-

sey defendants. The Clerk of the Third

Circuit notified all counsel and the

Judge of the U.S. District Court of New

Jersey that the restraining order had

been vacated with a specific provision

against any further stays, even pending

a petition to the Supreme Court for cer-

tiorari. Querques was thus unexpectedly

involved in two trials scheduled to be-

gin simultaneously. He notified the

SPR A I ES NLA POET ERIIE SPIN MLE 5 SRY TE NR

U.S. Attorney Prosecuting the instant

case.

On Monday, March 3, Mr. Querques

sought to be excused from the New Jer-

sey trial so that he could appear and

defend Arnold Romano in the instant Case.

The Trial Judge refused but did tele-

phone Judge MacMahon to explain what had

happened.

Judge MacMahon refused to delay

the trial so that Arnold Romano could

be represented by his retained counsel.

David Markowitz, Esq. was appointed as

Arnold Romano's counsel, over his conti-

nued objections but on the motion of the

prosecutor. Mr. James LaRossa, counsel

of record for Dominick Romano, and Mr.

James Hanrahan, counsel for Carmine

Guanti, and Mr. H. Howard Friedman,

attorney for Frank Sherbicki, told the

Court that the absence of Mr. Querques

grossly prejudiced their clients inso-

far as Mr. Querques was supposed to

carry the major burden of the cross-

examination of Charles Hedges.

It is clear from the statement

of counsel that the defense was to be

conducted as a team effort. Indeed,

defendants in joint trials frequently

have little alternative but to conduct

a team defense. Such matters as the

joint use of peremptory challenges by

majority ballot force the defense to

cooperate. This is particularly true

in a conspiracy trial where the defen-

dants are charged with acting jointly

to achieve a common purpose. Alas, the

conplexity of the instant case demanded

that a team effort be used to allow the

defense attorneys to adequately prepare

for trial within a time period.

Mr. LaRossa and Mr. Hanrahan

Stated expressly that the defense at-

torneys in this case had worked out

agreements as to the portions of the

trial which were to be handled by each

counsel. Mr. LaRossa and Mr. Hanrahan

also stated to the Court that it had

been the clear understanding among coun-

sel that Mr. Querques would conduct the

bulk of the cross-examination of Charles

im f a Pay

ENEMY VEN ATU EER RNR pee Mee ey is uf

. ft ee eee Ree ‘

Hedges, the chief Government witness,

and the only witness to give evidence

against Dominick Romano. The forced

absence of Mr. Querques, one of the

members of the team, from participation

in the trial, in effect, deprived the

Petitioner of a planned and appropriate-

ly effective cross-examination in per-

haps the most vital phase of the trial.

In addition, Mr. Hedges was the lead-

off witness for the Government so that

Mr. LaRossa, Appellant's counsel, was

forced to conduct his cross-examination

on March 4, 1969, only one day after

hearing of the judge's insistence on

proceeding. The obvious complexity of

the case, the numerous parties involved,

ee Te ee ee ee ee Se ee ee ee

the extensive prior proceedings and the

quantum of Mr. Hedges' testimony made

it impossible for any experienced coun-

sel to properly protect his client's

rights.

This is not a case in which the

Court is left to conjecture about the

ability or competency of counsel. Mr.

LaRossa and Mr. Hanrahan, both respect-

ed members of the bar, expressly stated

that the absence of Mr. Querques and

the necessity of shifting the cross-

examination to another member of the

defense team prejudiced their clients.

The fact that the cross-examination does

not appear so grossly incompetent as to

make a “sham or mockery" of the trial is

quite doubtful in view of the conviction

of Petitioner on such incrediPle perju-

rious testimony. It is not proof of the

effectiveness of cross-examination. The

Petitioner does not argue that the bre-

vity of the questioning or decisions by

counsel in themselves deprived him of

an effective cross-examination- Howev- —

er, the Petitioner does claim that the

Court's insistence on proceeding, as

augmented by the prosecution tactic

which immediately placed the single most

important witness on the stand within

twenty-four hours, was inherently unfair

in light of the expressed and obvious

lack of preparation by Mr. LaRossa to

conduct that cross-examination, and the

prosecutor's failure to keep his pro-

mise to Judge Cooper to make whatever

3500 material available as far in ad-

vance of trial as possible when he pro-

duced said material consisting of 85

pages of handwritten notes ten minutes

prior to trial.

In Glasser v. United States, 315

U.S. 60, the Court, commenting on a

claim of ineffective counsel, said, "In

all cases, the Constitutional safe-

guards are to be jealously preserved

for the benefit of the accused, but es-

pecially is this true where the scales

of justice may be delicately poised be-

tween guilt and innocence. There, error,

which under some circumstances would not

be ground for reversal, cannot be brush-

ed aside as immaterial since there is a

chance that it might have provided the

Slight impetus which swung the scales

toward guilt."

Certainly, the question of the

guilt of Dominick Romano was such a de-

licately balanced proposition. There

was but slight and suspect evidence link-

ing him tangentially to the alleged con-

Sspiracy. All that evidence was given by

Charles Hedges, whose cross-examination

Petitioner was not able to destroy suf-

ficiently or effectively. Even after

hearing what evidence was presented, the

jury was obviously in doubt as to Domi-

nick Romano's guilt. After delibera-

tions had begun, the jurors halted to

request a crucial piece of evidence

about Romano and later asked that the

summation of Petitioner's counsel, Mr.

LaRossa, be provided to them. When

the case against Romano was so obvious-

ly borderline, a more effective, orga-

nized and prepared cross-examination

would, without doubt, have avoided the

"slight impetus which swung the scales"

to convict the Petitioner.

———— ATE PNT ee ee eco

= a

THE PETITIONER'S RIGHT TO TESTIFY

IN HIS OWN BEHALF WAS IMPROPERLY

FRUSTRATED BY THE TRIAL JUDGE'S

INSISTENCE THAT HE BE TRIED JOINTLY

WITH HIS BROTHER.

The trial court insisted upon try-

ing the Petitioner, Dominick Romano,

jointly with his brother, Arnold, despite

his counsel's motion to sever either the

case of Arnold Romano or the case of

Dominick Romano. Petitioner's fundamental

right to testify and to be heard by the

jury was critical in this case. This

fact became positive and clear when the

jury--during its deliberations (even

though Petitioner did not testify) —

asked that Petitioner's counsel's summa-

tion be read to the jury.

This request was denied by the

Trial Judge.

Petitioner wanted to testify to

prove his innocence. Petitioner did not

ts 2. RAINE SERRE RIOR PLELELO ELLER IE | AE OSI

have the slightest fear of prejudicing

himself by the cross-examination of the

prosecutor.

Petitioner pleads with this

Court to give him the opportunity to

testify and be heard at an evidentiary

hearing.

He has offered and is offering

to be given a polygraph test by the Go-

vernment's polygraph experts. Petition-

er will stipulate that the results and

testimony of Government's polygraph ex-

perts be considered as admissible evi-

dence and be binding upon him.

Petitioner has never been ar-

rested or convicted of a crime, whereas

Arnold Romano, Petitioner's brother, had

a significant criminal record. An evi-

dentiary hearing will prove that Peti-

tioner's trial counsel was forced into

a very difficult decision by the Trial

Court's denial of his motion to sever

the case from Appellant's brother, Ar-

nold.

Petitioner was told by his trial

counsel that, if counsel put Petitioner

on the stand to testify--even though he

could prove his own innocence to the

jury--the cross-examination of the pro-

secutor would undoubtedly cast positive

inference of guilt against his brother,

Arnold.

This could be easily accomplish-

ed by the prosecutor by questioning the

Petitioner in detail about his brother

Arnold's alleged illegal activity. Fur-

thermore, his brother, Arnold, did not

intend to testify--the inferences of

Arnold's guilt would thus be positive

and overwhelming.

Hence, Petitioner's trial coun-

sel made the unfortunate decision for

Petitioner to keep him off the witness

stand and not testify.

It is the Petitioner's position

that the Trial Court, in refusing the

severance plea, thus unfairly placed

him in a position where his trial wane

sel forced him to remain silent in front

of the jury.

Thus, the Petitioner's right to

| 70

testify in his own behalf was completely

frustrated by the Court's denial of the

severance motion, abridging Dominick Ro-

mano's right to a fundamentally fair

hearing, to procedural due process, and

to the effective assistance of counsel.

It is respectfully submitted that these

decisions by the Trial Court and his

trial counsel did in fact substantially

destroy every semblance of fairness of

his trial. He was procedurally forced

to forego, for no sufficiently compell-

ing reason, what would have been custom-

ary, logical, and proper for the defense

of a person wrongfully accused by con-

fessed perjurers.

THE TRIAL JUDGE SHOULD HAVE

GRANTED PETITIONER'S MOTION

PURSUANT TO TITLE 28, UNITED

STATES CODE, SECTION 144, AND

RECUSED HIMSELF.

The lower Court denied the Pe-

titioner's motion to disqualify the

judge pursuant to 28 U.S.C. 144. The

Court found that the grounds stated in

the petition were insufficient, since

they failed to establish a bias or pre-

judice of a personal nature, and of ex-

trajudicial origin as opposed to one

acquired during the trial. Judge's me-

morandum A-16 citing United States v.

Grinnell Corp., 384 U.S. 563, 583 (1966);

Wolfson v. Palmieri, 396 F. 2d, 121, 124

(2nd Cir. 1968); Rosen v. Sugarman, 357

: eseenN TE we

—— snidiiasianiiiiailiaialiiiaiee aaa

F. 2d, 794, 797, 798 (2nd Cir., 1966),

other citations omitted.

It is respectfully submitted

that this interpretation is a misun-

derstanding of the relevant case law.

The decisions do hold that the bias

must stem from an "extrajudicial source

and result in an opinion on the merits

on some basis other than what the judge

learned from his participation in the

case.” U.S. v. Grinnel, 384 U.S. at

583.

However, it is not required that

the bias predate or originate outside

the proceedings. In Rosen v. Sugarman

it was alleged that the bias or preju-

dice arose from conflicts within the

courtroom during the proceedings, not

from history antecedent to the litiga-

tion or the judge's contacts outside

the courtroom. While rejecting the

claim on other grounds, the court said

that "where the antipathy has crystal-

lized to a point where the attorney

could do no right, the judge will have

acquired a bent of mind that may pre-

vent or impede impartiality of judgment."

357 F. 2d, at 798.

Similarly, in Wolfson v. Pal-

mieri, the Court held that comments made

during a trial were relevant to the is-

sue of bias and contacts during the

trial may have created a degree of ir-

ritation with a party or his lawyer as

to necessitate disqualification. 396

P. 24, 124.

Clearly, occurrences during

trial are proper evidence of bias or

prejudice. Furthermore, instances in

the trial can form the basis for a bias

requiring the disqualification of the

judge. It was, therefore, error to hold

the Petitioner's grounds for disquali-

fication as insufficient merely because

the claimed bias arose during the course

of the trial.

The lower Court has erroneously

characterized the instances of bias

cited by the Petitioner as "nothing more

than that the court's overruling of ob-

jections or denying motions by his coun-

sel or other defense attorneys, which

Petitioner claims were erroneous."

Judge's memorandum (A-17).

The petition referred specifi-

cally to personal chastisements and sar-

castic comments made by the judge in

the presence of the jury in regard to

objections raised by defense counsel.

(Amendment to Petition pursuant to 28

U.S.C. 2255, Court of Appeals for the

Second Circuit at pages A-55-58). Ob-

viously, it is these comments and not

the mere “overruling of objections and

the denying of motions" which form the

substantial basis of Petitioner's claim

of bias.

Thus, the Trial Court's defense

of his rulings does not dispose of the

question of bias. Certainly, the rul-

ings could all be correct; yet, the

accompanying remarks evidence a bias or

prejudice in the mind of the judge. The

correctness of the rulings, if indeed

they are correct, cannot carry along and

obliterate the accompanying disparaging

remarks.

The remarks remain as evidence

of the judge's irritation with the de-

fendant and defense counsel. In fact,

that bias and irritation might have been

communicated to the jury more authori-

tatively, dramatically and prejudicial-

ly, because it was included within cer-

tain rulings by the Court.

The issues of this nature most

commonly arise during the course of

trial. Interestingly, all the cases

cited by the Lower Court in its opi-

nion involved such situations. There

is an obvious and justifiable reluctance

to disqualify a judge who has acquired

a working knowledge of a case as it

would necessitate a mistrial. However,

that rationale is not applicable where,

as here, the disqualification was re-

guested at the outset of a subsequent

proceeding before the trial judge and

not made during the course of the trial

itself.

Certainly, there is a human temp-

tation on the part of a judge in such a

situation as this, to apply knowledge

acquired during the trial to the deter-

mination of the merits of the instant

claim. And where it is argued and do-

cumented that the judge has fallen prey

to emotional imbalances which influence

his partiality, the Petitioner should

not be denied a meaningful review by

the invoking of a legal fiction which

ignores psychological realities and pre-

sumes that all judges are fair and im-

partial by virtue of their training and

experience.

Congress has entrusted to the

trial judge the initial decision on a

motion to vacate sentence. However,

where, as here, some of the factors in

-_— =

support on the motion have reference to

the judge's rulings and conduct, his

application of previously acquired know-

ledge cannot help but destroy impartia-

lity. In addition, as to the motion

proceeding itself, the opinions deve-

loped during trial are extrajudicial.

Proof of the carryover and its

effect in the Petitioner's case lies in

the fact that the Lower Court made find-

ings of fact as to the allegations in

the motion to vacate, based not on evi-

dence adduced at a hearing, but instead,

on his recall of the occurrences during

trial. For example, solely on the ba-

sis of the record and despite the fact

that proof of perjury will rarely appear

SR ERENT EE TRL O RGA REL BS ALI MIENE EP OIL II

on the record itself, the Court summa-

rily dismissed the allegation that per-

jury had been committed.

The Petitioner's references to

the record in his allegations were not

intended to be the complete extent of.

his proof but were offered only to give

the required specificity to his peti-

tion. It is respectfully submitted that

the testimonial conflicts outlined in

the Petitioner's motion papers were

significant and indicate manufactured

and perjurious evidence. This merits

objective and disinterested judicial re-

view, which was denied the Petitioner.

CONCLUSION

For the reasons set forth above,

it is respectfully submitted that this

petition for a writ of certiorari should»

be granted.

Respectfully ee

HENRY anne, 9

ROTHBLATT, ROTHBLATT,

SEIJAS & PESKIN

Attorney for Petitioner

STEPHAN H. PESKIN

on the Brief.

Oe ee ee eS ee ee

A-1

MEMORANDUM OPINION OF MACMAHON, D.J.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

§IGU&AAaAeeSEseusesaeseeaenessaoan x

DOMINICK ROMANO,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

AASASSESERSSSSHSOEOSOOeewonnnas x

PRO SE

71 Civ. 2851

MEMORANDUM

38153

MacMahon, District Judge

Petitioner Dominick Romano was

one of four defendants convicted by a

A-2

MEMORANDUM OPINION OF MACMAHON, D.J.

jury after a two-week trial of conspi-

racy to import and distribute huge

amounts of heroin into the United States

from France, in violation of the fede-

ral narcotics law. The judgments were

affirmed on appeal. United States v.

Guanti, 421 F. 2d 792 (2d Cir.), cert.

denied, 400 U.S. 832 (1970). Petition-

er's trial was the second to arise from

a single indictment filed in 1964 be-

cause petitioner and his three co-de-

fendants were fugitives at the time of

the first trial (hereinafter "Armone

trial"). See United States v. Armone,

363 F. 2d 385 (2d Cir.), cert. denied,

A-3

MEMORANDUM OPINION OF MACMAHON, D.J.

385 U.S. 957 (1966).

Petitioner now moves for post-

conviction relief, pursuant to 28 U.S.C.

§ 2255, for an evidentiary hearing, for

an order vacating a judgment of convic-

tion and sentence imposed upon him on

April 15, 1969, and for disqualifica-

tion of the trial judge from hearing

and determining these proceedings for

bias and prejudice. We deny the peti-

tion in all respects,

Petitioner's application, ori-

ginally submitted pro se but later amend-

ed by retained counsel, is not a model

of clarity. It contains twenty-eight

OIE APPS IIESS + ES OS ERD aN SIRT AEE, TIN TERRES

a a Ta al ee

A-4

MEMORANDUM OPINION OF MACMAHON, D.J.

pages of bald conclusions, unsupported

allegations, rank speculation, material

misstatements of the record and ramb-

ling dissertations on the law. The ap-

plication purports to list twelve se-

parate violations of petitioner's con-

stitutional rights, but after careful

scrutiny we find many of them repeti-

tious.

We shall first consider whether

petitioner is entitled to a hearing.

We are required to hold " ‘a

prompt hearing' when the allegations

of deprivation of constitutional rights

raise disputed issues of fact in order

Bin sees: essere econ sey eomonemners ey ORE OS ED SLR AION, ERS RD

A-3

MEMORANDUM OPINION OF MACMAHON, D.J.

to ‘determine the issues and make find-

ings of fact and conclusions of law'

with respect to them ‘unless the mo-

tion and the files and records of the

case conclusively show that the prison-

er is entitled to no relief." 28 U.S.C.

§ 2255 . ..e-e-" United States v. Mal-

colm, 432 F. 2d 809, 812 (2d Cir. 1970),

and cases cited therein.

Evidentiary hearings are not

required, however, on nonconstitution-

al claims, nor on constitutional claims

which have been adversely decided by a

trial or appellate court. Kaufman v.

United States, 394 U.S. 217, 227 n. 3

A-6

MEMORANDUM OPINION OF MACMAHON, D.J.

(1969). Constitutional claims, des-

pite previous consideration or previous

opportunity for consideration, do re-

quire an évtitentlady hearing "(1) where

a federal trial or appellate court said

nothing because the issue was not raised;

(2) where it was unclear whether the

‘say' was on the merits; (3) where new

law had been made or facts uncovered

relating to the constitutional claim

since the trial and appeal; and (4) where

the trial or appellate court based its

rulings on findings of fact made after

a hearing that was not full and fair,"

Kapatos v. United States, 432 F. 2d 110,

— NESTOR “ STANTIAL RAO TS TM MEE Ie EPI oF Oh

A-7

MEMORANDUM OPINION OF MACMAHON, D.J.

113 (2d Cir. 1970), cert. denied, 401

U.S. 909 (1971); Sanders v. United

States, 373 U.S. 1 (1963). Keeping

these principles in mind, we now turn

to petitioner's claims.

IMPERMISSIBLE SUGGESTIVE IDENTIFICATION

OF CHARLES HEDGES BY CHARLES BOURBONNAIS

Charles Hedges and Charles Bour-

bonnais were government witnesses at

| both the Armone trial and petitioner's

trial, and both were involved in the

conspiracy of which petitioner was con-

victed. Petitioner contends that Bour-

bonnais' in-court identification of a

picture of Hedges was tainted by an im-

REG LION LTA EM YET REDEEM REELS PIER OE TIE Sf AIEICR AIT Pe aN

GE IT IRN

A-8

MEMORANDUM OPINION OF MACMAHON, D.J.

permissibly suggestive pre-trial iden-

tification, in violation of his con-

stitutional rights, as set forth in

United States v. Wade, 388 US 218 (1967),

Gilbert v. California, 388 US 263 (1967),

and Stovall v. Denoo, 388 US 293 (1967)

Specifically, petitioner claims

the impermissive suggestion occurred

when the prosecution brought Bourbon-

nais and Hedges together in a face-to-

face confrontation prior to trial in

the office of Assistant United States

Attorney William Tendy. Petitioner fur-

ther contends that without this "one on

one" process of confrontation, Bourbon-

ST Ra ROREAUE PMN RYT pe? FLOOR

A-9

4 MEMORANDUM OPINION OF MACMAHON, D.J.

nais would have had no independent source

by which to identify Hedges. In support

of this contention, petitioner points to

Bourbonnais' testimony at the Armone

trial regarding the meeting in Mr. Ten-

dy's office:

Bourbonnais "A. I did not recognize

Mr. Hedges at that

particular time. He

himself said hello

and recited the in-

cident and the cir-

cumstances under

which we met pre-

viously.

* * *

Mr. Kasanof "QO. It wasn't until Mr.

Hedges said some-

thing to you that

you recognized him?

— SEER EEA PER EIEN PRUE LT AER SE HN OE

PSS

A-10

MEMORANDUM OPINION OF MACMAHON, D.J.

Bourbonnais "A. I did not recognize

him, sir. I recog-

nized the incident

of our previous meet-

ing at the time he

met me on 55th Street

and First Avenue."

(Armone Tr. 2438-.

2439)

No constitutional right of peti-

tioner was violated by the meeting of

Bourbonnais and Hedges in Mr. Tendy's

office. The Wade, Gilbert and Stovall

trilogy are inapplicable. These and

‘ other cases upon which petitioner relies

: deal with pre-trial confrontations .of

an accused for identification, absent

counsel, by a prospective government

witness. In those cases, the Court held

MOTTE SORES z PETS R

ns ong ELLIE LOS PE POE Ee SR fie ier r

A-11

MEMORANDUM OPINION OF MACMAHON, D.J.

that a post-indictment lineup was a cri-

tical stage of the prosecution at which

a defendant was entitled to the assis-

tance of counsel. United States v. Wade,

supra, 388 U.S. at 237.

Here, the pre-trial confronta-

tion was between prospective government

witnesses and not, as in the cases cited

by petitioner, between an accused and a

prospective government witness. Peti-

tioner was not present at the meeting

in Mr. Tendy's office, and it would be

an absurdity for us to hold that peti-

tioner's right to counsel extends to the

government's interviewing of witnesses

LAT TROT RN Heme He Pn NE ES EEN

A-12

MEMORANDUM OPINION OF MACMAHON, D.J.

in the preparation of its case.

Moreover, the Armone transcript

reveals that Bourbonnais was hesitant

in identifying Hedges because they had

only met twice before and because Bour-

bonnais was of the opinion that Hedges

played a small part in the conspiracy.

(Armone Tr. 2433-2434; 2606-2607.)

Accordingly, we conclude that

petitioner's claim of denial of a con-

stitutional right because of a tainted

in-court identification is without .me-

rit.

PROSECUTION'S DELIBERATE

SUBORNATION OF PERJURY

nm SE OME INR PA SOUR SPN IS MONEE FOREARM

A-13

MEMORANDUM OPINION OF MACMAHON, D.J.

Petitioner's contentions num-

bered I, II, VI, IX, X and XII all con-

cern his allegation that the prosecu-

tion suborned perjury. He alleges in

I, II and VI that the prosecution's

subornation of perjury improperly and

illegally influenced both the grand jury

to indict him and the petit jury to con-

vict him. He further alleges in Ix and

X that false statements by the prosecu-

tion denied him a full and fair review

of his case both on appeal and on his

petition for certiorari. Finally, he

contends in XII that the government's

grant of immunity from prosecution to

= ON SAS MDOT yy LIPO VN QO” te

OO vrT™ LT OTE THD

Pe Ones Be

ite in ee BESET eel

A-14

MEMORANDUM OPINION OF MACMAHON, D.J.

Hedges and Bourbonnais and its promise

to reduce their sentences is a process

so likely to produce perjury that it

violates due process of law.

It would be a gross understate-

ment to say petitioner's application

lacks specificity in support of these

allegations. Sprinkled here and there

throughout his twenty-eight page appli-

cation are clues to the alleged perju-

ry, although he never identifies one

perjurious statement. Petitioner does,

however, state that the testimony of

both Charles Hedges and Charles Bour-

bonnais was perjurious.

POG OPEL IPL SE DEED

A-15

MEMORANDUM OPINION OF MACMAHON, D.J.

Considering Hedges' testimony

first, petitioner makes the broad con-

clusory statement that Hedges' testi-

mony was given to “create as impress-

ive a picture of prosecution potential

as he could for the sole purpose of

enhancing the possibility of earning

his freedom as a reward for the combi-

nation of fact and perjurous (sic) fan-

tasy his testimony represented." No-

where, however, does petitioner cite

a single perjurious statenent made by

Hedges; nor does he even cite any tes-

timony given by Hedges. Such unsup-

ported conclusory allegations and spe-

REE ERIE ITE OE ET EIEIO

Poe

A-16

MEMORANDUM OPINION OF MACMAHON, D.J.

culation do not raise issues which would

require an evidentiary hearing, nor the

ultimate relief petitioner seeks. Cf.

Burris v. United States, 403 F. 24 399,

402 (7th Cit. 1970), cert. denied, 401

U.S. 921 (1971).

Turning to Bourbonnais' alleged

perjury, petitioner contends that

Hedges, at the identification confron-

tation with Bourbonnais in Mr. Tendy's

office, was allowed by the prosecution

to recite events to Bourbonnais which.

never occured and that this recital] be-

came Bourbonnais' entire testimony. He

further contends that such an identifi-

A-17

MEMORANDUM OPINION OF MACMAHON, D.J.

cation procedure by the government could

"accurately (be) categorized as deliber-

ate subornation of perjury." These con-

tentions are patently frivolous.

The vast majority of Pourbonnais'

direct testimony described the proce-

dure he followed as a courier in bring-

ing narcotics into the United States

and the various contacts he had here and

abroad. Approximately seven pages of

direct testimony out of a total of seven-

ty-four pages concerned Hedges. The re-

cord is perfectly clear that Bourbonnais

had only minimal contact with Hedges and

that it was necessary for Hedges to re-

A-18

MEMORANDUM OPINION OF MACMAHON, D.J.

fresh Bourbonnais' memory of their pre-

vious meetings. This is borne out by

the cross and redirect examinations of

Bourbonnais at the Armone trial:

Cross

Bourbonnais "A. Mr. Hedges' picture

was shown to me on

several occasions

and I could never

identify him for the

Simple reason that

he was just a small

part in this trans-

action, and he had

complete --" (Ar-

mone Tr. 2433-2434.)

(Emphasis added.)

Redirect

Mr. Morvillo "Q. Do you remember on

cross-examination Mr.

Kasanof asked you

about a meeting that

took place in Mr.

ESTE g a Ros

A-19

MEMORANDUM OPINION OF MACMAHON, D.J.

Bourbonnais

Mr. Morvillo

Bourbonnais

"O.

ey om

Tendy's office with

Mr. Hedges?

Yes, Sir.

Would you tell the

court and jury what

happended during

that meeting?

I would be glad to.

On this particular

meeting I was asked

to come down to Mr.

Tendy's office to

identify aman. In

the room at the time

I believe Mr. Tendy

was present, Mr.

Hedges, which I know

now is Mr. Hedges,

myself and one or

two other men. I

don't recall.

Mr. Tendy turned to

me and asked me if

I knew this parti-

cular man, referring

to Mr. Hedges. I

OOS SARS DORENEN ES RSA RDB Ay SBM, Mah! CL, SEN EN ch

— —a——_

A-20

MEMORANDUM OPINION OF MACMAHON, D.J.

told him that I did

not know him. He

asked me to be sure,

to take another look.

I looked for a few

moments and again

I assured Mr. Tendy

that I did not know

him at all.

Finally, Mr. Hedges

came up to me and

said, 'Charlie don't

you remember me'?

I said "No, I do not."

He said 'I am the

fellow that came up

to your car that day

and you gave the two

) suitcases.' He des-

cribed how he was

dressed and then

upon this description

of that, I recollected

the incident.

Mr. Morvillo "Q. Was that the first

time that you remem-

ee a a RNS

A-21

MEMORANDUM OPINION OF MACMAHON, D.J.

bered Mr. Hedges?

Bourbonnais "A. Yes, that was the

first time, although

I would never have

recognized him at

the time but, as I

said, when he told

me what transpired

between he and I,

I remembered defi-

nitely the meetings

that had taken place

between he and I.

There were only two."

(Armone Tr. 2606-

2607.)

Petitioner's allegations that

Hedges recited Bourbonnais' entire tes-

timony is, therefore, at variance with

the record and completely lacking in me-

rit.

Additionally, petitioner's alle-

— Se ISEB 9 AAI LSE IEEE DNR SILT LORD LEE AEN

P Re ee a eS a

a —

A-22

MEMORANDUM OPINION OF MACMAHON, D.J.

gation that the testimony of Hedges and

Bourbonnais was perjurious because of

government promises is without merit,

as petitioner has failed to demonstrate

any perjurious testimony.

Accordingly, we find petitioner's

allegation that the government suborned

perjury to be without merit.

DENIAL OF ADEQUATE

ASSISTANCE OF TRIAL COUNSEL

Petitioner alleges that he was

Qenied adequate assistance of counsel

because his attorney, James M. LaRossa,

ineffectively cross-examined Charles

Bourbonnais. In support of this con-

A-23

MEMORANDUM OPINION OF MACMAHON, D.J.

tention, petitioner points to the fact

that at the Armone trial three defense

lawyers cross-examined Bourbonnais for

a total of 412 pages of trial transcript,

whereas at his trial, Mr. LaRossa's and

Mr. Hanrahan's cross-examination of

Bourbonnais totalled only 49 pages of

trial transcript.

Petitioner also contends that

Mr. LaRossa stated on the record that

he was unprepared to proceed with the

cross-examination of Bourbonnais. This

allegation is patently frivolous. No-

where in the record is there evidence

that Mr. LaRossa was unprepared to cross-

A-24

MEMORANDUM OPINION OF MACMAHON, D.J.

examine Bourbonnais and petitioner's

assertion that Mr. LaRossa stated so

is, therefore, a material misstatement

of the record.

Petitioner's bald contention

that the mere length of a cross-exami-

nation is somehow,related to the quali-

ty of the cross-examination is sheer

nonsense. Verbosity and lengthy cross-

examinations are the hallmarks of in-

competence, not of effective advocacy.

Also, petitioner has failed to specify

a ee

how the cross-examination was ineffec-

tive, except for its alleged brevity.

That was obviously a tactical decision

A-25

MEMORANDUM OPINION OF MACMAHON, D.J.

and, in our opinion, wise in the cir-

cumstances. Petitioner had the good

fortune to be represented by one of the

most experienced and competent members

of the criminal bar of the City of New

York and his performance in petitioner's

behalf was in the highest tradition of

the bar.

Accordingly, we conclude that

petitioner's claim of denial of effec-

tive assistance of counsel is totally

without merit.

DENIAL OF RIGHT TO CALL

WITNESSES IN HIS OWN BEHALF

Petitioner contends that he was

A-26

MEMORANDUM OPINION OF MACMAHON, D.J.

denied his right to call witnesses in

his own behalf because the prosecution

had him tried jointly with his brother,

thereby making it morally impossible for

him to testify without prejudicing the

cause of his brother.

It is axiomatic that persons

jointly charged in a conspiracy should

be tried inten witens it is shown

that a defendant will be substantially

prejudiced by a joint trial. Rule 14,

Fed.R.Crim.P., United States v. Bent-

vena, 319 F.2d 916 (2d Cir.), cert. de-

nied sub nom. Ormento v. United States,

375 U.S. 940 (1963); United States v.

Burgio, 279 F. Supp. 843 (S.D.N.Y. 1968).

—

A-27

MEMORANDUM OPINION OF MACMAHON, D.J.

Petitioner's alleged moral obligation

to his brother does not substantially

prejudice his case and, therefore,

would not be ground for a separate

trial.

Accordingly, we conclude that

petitioner's alleged denial of his right

to call witnesses and to testify in his

own behalf is without merit.

PROSECUTION'S DELIBERATE WITHHOLDING

OF EXCULPATORY MATERIAL

Petitioner claims that the pro-

secution suppressed exculpatory evidence

which it was obligated to turn over to

the defense in accordance with Brady v.

PPP NER ERE PAAR RII PLS TOT OA

a Pe SS Pe eed Re

;

MEMORANDUM OPINION OF MACMAHON, D.J.

Maryland, 373 U.S. 83 (1963).

In vague terms, petitioner con-

tends that the government failed to

turn over contradictory statements of

Charles Bourbonnais given under oath,

although petitioner does not identify

when or where these statements were

made. Petitioner does, however, make

reference to alleged inconsistent state-

ments of Bourbonnais given at the Ar-

mone trial.

The government has no duty un-

der Brady to turn over contradictory

statements of a witness made at a prior

trial when the records of that trial

MEMORANDUM OPINION OF MACMAHON, D.J.

are public. Brady deals with the sup~-

pression by the prosecution of evidence

favorable to the accused, and it is

clearly inapplicable heré becaus¢ the

prosecution could not and did net sup-

press the transcript of the Armone trial.

Petitioner further contends that

the government also violated Brady in

failing to turn overs the results of a

lie detector test taken by Bourponnais.

This contention is another palpable mis-

statement of the record, since the go-

vernment did turn over the results of

the lie detector test when it gave de-

fense counsel 3500 material before Bour-

A-30

MEMORANDUM OPINION OF MACMAHON, D.J.

bonnais testified. See Government Ex-

hibit 75 and Trial Transcript, p. 487

ee ee

Finally, we find no merit in

petitioner's additional claims in his

"Amendment to Motion to Vacate Sentence"

that the government failed to turn over

as 3500 material the grand jury testi-

mony of Hedges and Bourbonnais. The

record is clear that Hedges' grand jury

testimony (Government Exhibit 31), and

Bourbonnais' grand jury testimony (Go-

vernment Exhibits 82, 83, 84 and 87)

were turned over to defense counsel for

inspection. (Tr. ], 487 and 559.)

A-3]

MEMORANDUM OPINION OF MACMAHON, D.J.

Accordingly, we conclude that

petitioner's Brady contention is with-

out merit.

PREJUDICIAL CHARGE TO THE JURY

Petitioner claims that the

court's charge was "patently erroneous

as a statement of law" because it con-

tained an instruction whereby the jury

had to find all defendants guilty or

all defendants not guilty. On the con-

trary the court specifically charged

that:

"The guilt or innocence

of each defendant must be de-

termined by you separately.

In other words, under our law,

MEMORANDUM OPINION OF MACMAHON, D.J.

there is no such thing as guilt

by mere association. Each de-

fendant has the right to the

same kind of consideration on

your part as you would give him

if he were being tried alone."

(Tr. 1141-42)

This claim, furthermore, was

squarely raised, considered and reject-

ed on direct appeal and, therefore, will

not be considered here. United States

v. Guanti, supra, 421 F.2d at 798; Cas-

tellano v. United States, 378 F.2d 231,

233, (2d Cir. 1967).

Moreover, the court's charge is

not reviewable by way of collateral at-

tack under 28 U.S.C. § 2255. Banks v.

United States, 287 F.2d 374 (7th Cir.),

_—

A-33

MEMORANDUM OPINION OF MACMAHON, D.J.

cert. denied, 366 U.S. 939 (1961).

Thus, this claim is also with-

out merit.

CONSPIRACY PROVISION OF 21 U.S.C.

§ 174 IS UNCONSTITUTIONAL

Petitioner claims that the con-

spiracy provision of 21 U.S.C. § 174,

under which he was convicted, is uncon-

stitutional.

The short answer to this claim

is that federal conspiracy: statutes

have consistently been held to be con-

stitutional. Clune v. United States,

159 U.S. 590, 595 (1895); Callan Vv.

Wilson, 127 US 540, 555-556! (1888); See

;

A-34

' MEMORANDUM OPINION OF MACMAHON, D.J.

Dennis v. United States, 341 U.S. 494,

511 (1951); Pinkerton v. United States,

328 U.S. 640, 643 (1946).

Accordingly, this claim is with-

out merit.

Finally, petitioner requests

that he be allowed to take a lie detec-

tor test. Nothing could be gained by

such a test and, therefore, this request

is in all respects denied. -

MOTION TO DISQUALIFY

The ground urged by petitioner

as a basis for disqualification is that

the trial judge "has obtained in this

A-35

MEMORANDUM OPINION OF MACMAHON, D.J.

case a bias against myself and my co-

defendants, so strong as to affect his_

objectivity in assessing the claims made

in my pending Motion to Vacate Sentence."

Though not explicitly stated, this phase

of the petition is apparently premised

on 28 U.S.C. § 144. That statutue pro-

vides:

"Whenever a party to any

proceeding in a district court

makes and files a timely and

sufficient affidavit that the

judge before whom the matter

is pending has a personal bias

or prejudice either against

him or in favor of any adverse

party, such judge shall pro-

ceed no further therein, but

another judge shall be assign-

ed to hear such proceeding.

The affidavit shall state

A-36

MEMORANDUM OPINION OF MACMAHON, D.J.

the facts and the reasons for

the belief that bias or preju-

dice exists . .. .A party

may file only one such affi-

davit in any case. It shall

be accompanied by a certifi-

cate of counsel of record

stating that is is made in

good faith."

The moving papers are utterly

devoid of any facts showing personal

bias or prejudice against petitioner on

the part of the trial judge. The sta-

tute and the decisions under it make

clear that it must appear from the facts

presented in the petition that the bias

is personal in nature, that is, an at-

titude of extrajudicial origin as op-

posed to one acquired during the course

A-37

MEMORANDUM OPINION OF MACMAHON, D.J.

of judicial proceedings. United States

v. Grinnell Corp., 384 US 563, 583

(1966); Wolfson v. Palmieri, 396 F.2d

121, 124 (2d Cir. 1968); Rosen v. Sugar-

man, 357 F.2d 794, 797-798 (2d Cir.

1966); Foster v. Medina, 170 F.2d 632

(2d Cir.), cert. denied, 335 US 909

(1949); Ormento v. United States, 328

F. Supp. 246, 260 (S.D.N.Y.), aff'd

without opinion, Docket No. 71 Cr. 1628

(2d Cir., Oct. 28, 1971); Mirra v.

United States, 379 F. 2d 782, 787-788

(2d Cir.), cert. denied, 389 US 1022

(1967).

This application, therefore, is

A-38

MEMORANDUM OPINION OF MACMAHON, D.J.

insufficient on its face in that, at

most, it seizes upon a few isolated

instances out of context occurring dur-

ing the course of a two-week trial,

which petitioner interprets as manifes-

tations of the court's bias against him.

Most of these consist of nothing more

than the court's overruling objections

or denying motions by his counsel or

other defense attorneys, which petition-

er claims were erroneous. Patently,

petitioner's bald ouminmhene of bias

are legally insufficient.

For example, petitioner claims

that the court erroneously permitted

A-39

MEMORANDUM OPINION OF MACMAHON, D.J.

Hedges, a co-conspirator, to relate

statements made by codefendants Pacelli

and Ricucci during the course of the

conspiracy which tended to inculpate

the petitioner. There was no objection

to this testimony, quite obviously, be-

cause it is hornbook law that statements

of co-conspirators, in furtherance of

the conspiracy, are admissible against

all conspirators.

Again, as further evidence of

the trial judge's bias, petitianes points

to the judge's refusal to accept requests

to charge from his counsel, after all

counsel had concluded their summations

“ie CESS RE AF Seb Sie Bas Set Ti a a

A-40

MEMORANDUM OPINION OF MACMAHON, D.J.

and five minutes before the court

charged the jury. Surely, our ruling

was not only reasonable and justified

but fully supported by Rule 30, Fed.R.

Crim.P., which requires the submission

of requests to charge at the close of

the evidence and not after summations

by counsel, a few minutes before the

charge, as was the case here. More-

Over, petitioner's counsel was given,

and availed himself of, a full opportu-

nity to take exception to the court's

charge.

Petitioner's other allegations

of bias are equally frivolous. In short,

jae

A-4]

MEMORANDUM OPINION OF MACMAHON, D.J.

he utterly fails to show "a bent of mind

(on the part of the trial judge) that

might prevent or impede impartiality of

judgment" in the present proceedings.

Berger v. United States, 255 US 22, 33-

34 (1921).

Finally, 28 U.S.C. § 144 re-

quires, among other things, that an af-

fidavit of bias and prejudice “shall be

accompanied by a certificate of counsel

of record stating that it iis made in

good faith."

Counsel of record for petition-

er upon the trial of this case was James

M. LaRossa, and upon the appeal David B.

EERE I ET RE TT ea rl ee

A-42

MEMORANDUM OPINION OF MACMAHON, D.J.

Isbell and James M. LaRossa. Neither

has filed a certificate of good faith

on behalf of petitioner. Nor, indeed,

has petitioner's present counsel, Henry

B. Rothblatt, a member of the bar of

this court, retained by him to file the

amended petition which added the charge

of bias on the part of the trial judge.

The requirement of such a cer-

tificate is not a mere technicality

but one of the essential requirements

of the statute. Ormento v. United

States, supra, 328 F. Supp. at 260-261.

Although this is a significant defect

in the instant motion to disqualify,

A-43

MEMORANDUM OPINION OF MACMAHON, D.J.

we do not rely on it in disposing of the

motion.

Neither the petition nor amended

petition shows any factual basis for

the claim of bias and prejudice. We

have never held any personal bias or

prejudice, nor acted as a result of any

bias or prejudice, against this peti-

tioner nor any defendant in this case.

Nor have we held any bias or prejudice,

nor acted as a result of any bias or

prejudice, in favor of the gueseceticn.

Each and every action of the court is

a matter of record. All of our rulings

were objective, impersoral, based on

A-44

MEMORANDUM OPINION OF MACMAHON, D.J.

the evidence and incidents happening

during the trial, and to the best of our

ability were made in accordance with

the law, regardless of the party or par-

ties affected.

Accordingly, petitioner's motion

to vacate the judgment of conviction and

sentence heretofore imposed upon him,

for a hearing, and to disqualify the

trial judge from considering this appli-

cation for post-conviction relief is in

all respects denied.

So ordered.

Dated: New York, N.Y.

' January 5, 1972

/s/ Llovd F. MacMahon

United States District Judge

A-45

OPINION OF THE SECOND CIRCUIT COURT OF

APPEALS

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 761 - September Term, 1971

(Argued May 9, 1972. Decided May 30, 1972

Docket No. 72-1107

cnsiadieiiaias

DOMINICK ROMANO,

Petitioner-Appellant,

-against-

UNITED STATES OF AMERICA,

Respondent-Appellee.

Before:

FRIENDLY, Chief Judge,

MOORE and ANDERSON, Circuit Judges.

A-46

OPINION OF THE SECOND CIRCUIT COURT OF

APPEALS

ee Leaawee

Appeal from an order of the Dis-

trict Court for the Southern District

of New York, Lloyd F. MacMahon, District

Judge, denying without a hearing a mo-

tion to vacate a judgment of conviction

pursuant to 28 U.S.C. § 2255 and deny-

ing a motion that the District Judge

disqualify himself pursuant to 28 U.S.C.

§ 144. |

Affirmed.

ealaeaiieenineall anon

EEL TE aay Te, EO LEC ee ee eR

A-47

OPINION OF THE SECOND CIRCUIT COURT

OF APPEALS

Henry B. Rothblatt,

New York, N. Y. (Roth-

blatt, Rothblatt, Seijas

& Peskin, New York, N. Y.,

on the brief), for Appel-

lant.

John C. Sabetta, Assistant

United States Attorney,

New York, N. Y., (Whitney

North Seymour, Jr., United

States Attorney for the

Southern District of New

York, N.Y. and Peter F.

Rient, Assistant United

States Attorney, New York,

N.Y¥., of counsel), for

Appellee.

PER CURIAM:

Dominick Romano appeals from an

order denying without a hearing his mo-

tion to vacate a judgment of conviction

ELEN CAL ANE MNO RAEN TIN TR TULA TANYA,

A-48

OPINION OF THE SECOND CIRCUIT COURT OF

APPEALS

pursuant to 28 U.S.C. § 2255 and deny-

ing his motion that the District Judge

disqualify himself from determining the

motion for post-conviction relief pur-

suant to 28 U.S.C. § 144. Finding no

error, we affirm.

Appellant is presently serving

a 20-year sentence which was imposed

after he was found guilty of having

conspired to violate the Federal Nar-

cotics Laws, 21 U.S.C. § 173, 174. The

judgment of conviction was affirmed by

this court in United States v. Guanti,

421 F.2d 792 (2d Cir.), cert. denied,

400 U.S. 832 (1970). For a statement

ROOT LM LEE LL LEE EY LIT AE GE NL oF

A-49

OPINION OF THE SECOND CIRCUIT COURT OF

APPEALS

of the facts in this case see the opi-

nion in Guanti, supra.

In the papers submitted in sup-

port of his motion to vacate his judg-

ment of conviction, appellant alleges

that the prosecution knowingly used

perjurious testimony at his trial.

This claim is without merit. No evi-

dence of perjury is noted and no false

testimony is cited. The fact that a

prosecution witness may have a crimi-

nal record is not sufficient basis for

vacating a judgment of conviction when

the witness' criminal record was known

at the time of trial. Similarly, the

A-50

OPINION OF THE SECOND CIRCUIT COURT OF

APPEALS

mere assertion that a witness might have

had a motive to lie, when unsupported

by any fact, does not entitle a peti-

tioner to a hearing on the alleged use

of perjurious testimony. |

Also without merit is the claim

of prejudice emanating from an alleged-

ly improper in-court photographic iden-

tification of one prosecvtion witness

by another. According to the appellant,

the in-court identification was tainted

by an impermissibly suggestive pre-trial

confrontation between the two witnesses.

The appellant argues that this confron-

tation was in violation of his consti-

LEE ALE eer PLE IE LIN OR ILS

A-51

OPINION OF THE SECOND CIRCUIT COURT OF

APPEALS

tutional rights as enumerated in United

States v. Wade, 388 U.S. 218 (1967),

Gilbert v. California, 388 U.S. 263

(1967) and Stovall v. Denno, 388 U.S.

293 (1967).

None of appellant's constitu-

tional rights were violated when these

two witnesses met-‘at an interview before

trial. Appellant's right to counsel

does not extend to the government's in-

terviewing of witnesses in preparation

of its case when the appellant was not

even present at this meeting.

Appellant's third claim, that

he was deprived of the effective assis-

ETE TE, OT LT EERIE ENN OTS TPT

A-52

OPINION OF THE SECOND CIRCUIT COURT OF

APPEALS

tance of counsel was rejected by this

court in an earlier appeal. Guanti,

supra at 799. As -no additional facts

‘are cited in support of the claim, it

can be dismissed as being without merit.

The remaining contentions, that

the District Judge should have disqua-

lified himself from determining this

motion and that appellant's right to

testify in his own behalf was frustrated

because the trial court denied his mo-

tion to sever his trial from that of

his brother, are without any merit.

The order of the District Court

is therefore affirmed.

A-53

DENIAL OF REHEARING BY THE

SECOND CIRCUIT COURT OF APPEALS

72-1107

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

<item int nt ts nt cin x

Dominick Romano,

Petitioner-Appellant,

United States of America,

Defendant-Appellee.

Serer emer mmemwmeeoweeamnameeoonn x

A petition for a rehearing con-

taining a suggestion that the action be

reheard in banc having been filed here-

in by counsel for the appellant and no

active circuit judge having requested

A-54

DENIAL OF REHEARING BY THE

SECOND CIRCUIT COURT OF APPEALS

that a vote be taken on said suggestion,

Upon consideration thereof, it

is |

Ordered that said petition be

and it hereby is denied.

/s/ HENRY J. FRIENDLY

HENRY J. FRIENDLY,

Chief Judge

July 3, 1972

LILLIAN

MESA PS A AD weerly Os Ss et oi

OE ba as bole Ce TEN We . 1 ” >

A-55

CONSTITUTIONAL PROVISIONS AND

STATUTUES INVOLVED

Sixth Amendment of The United

States Constitution:

In all criminal prosecutions,

the accused shall enjoy the right to

a speedy and public trial, by an inm-

partial jury of the State and district

wherein the crime shall — been com-

mitted, which district shall have been

previously ascertained by law, and to

be informed of the nature and cause of

the accusation; to be confronted with

the witnesses against him; to have com-

pulsory process for obtaining Witnesses

in his favor, and to have the Assistance

of Cousel for his defense.

oases SRAERE NERS EAR REIL Tae A

afl

A-56

CONSTITUTIONAL PROVISIONS AND

STATUTUES INVOLVED

28 U.S.C. 2255:

A prisoner in custody under sen-

tence of a court established by Act of

Congress claiming the right to be re-

leased upon the ground that the sentence

was imposed in violation of the Consti-

tution or laws of the United States, or

that the court was without jurisdiction

to impose such sentence, or that the

sentence was in excess of the maximum

authorized by law, or is otherwise sub-

ject to collateral attack, may move the

court which imposed the sentence to va-

cate, set aside or correct the sentence.

A motion for such relief may be

eee —— es

A-57

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

made at any time.

Unless the motion and the files

and records of the case conclusively

show that the prisoner is entitl2d to

no relief, the court shall cause no-

tice thereof to be served upon the U-

nited States attorney, grant a prompt

hearing thereon, determine the issues

and make findings of fact and conclu-

sions of law with respect thereto. If

the court finds that the judgment was

rendered without jurisdiction, or that

the sentence imposed was not authorized

by law or otherwise open to collateral

attack, or that there has been such a

eer

A-58

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

denial or infringement of the constitu-

tional rights of the prisoner as to ren-

der the judgment vulnerable to colla-

snak attack, the court shall vacate

and set the judgment aside and shall

discharge the prisoner or resentence

him or grant a new trial or correct the

sentence aS may appear appropriate.

A court may entertain and de-

termine such motion without requiring

the production of the prisoner at the

hearing.

The sentencing court shall not

be required to entertain a second or

successive motion for similar relief

a Beery: 1) POR AOR PO, wn.

— hae

—

A-59

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

on behalf of the same prisoner.

An appeal may be taken to the

court of appeals from the order entered

on the motion as from a final judgment

on application for a writ of habeas cor-

pus.

An application for a writ of

habeas corpus in behalf of a prisoner

who is authorized to apply for relief

by motion pursuant to this section,

shall not be entertained if it appears

that the applicant has failed to apply

for relief, by motion, to the court

which sentenced him, or that such court

has denied him relief, unless it also

. — ) . =

nae

ete

A-60

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

appears that the remedy by motion is

inadequate or ineffective to test the

legality of his detention.

: June 25, 1948, c. 646, 62 Stat. 967;

;

4 May 24, 1949, c. 139, § 114, 63 Stat.

5 105.

28 U.S.C. 144;

Whenever a party to any pro-

ceeding in a district court makes and

files a timely and sufficient affida-

vit that the judge before whom the mat-

ter is pending has a personal bias or

prejudice either against him or in favor

of any adverse party, such judge shall

a ReHT UNTIL

A-61

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

proceed no further therein, but another

judge shall be assigned to hear such

proceeding.

The affidavit shall state the

facts and the reasons for the belief

that bias or prejudice exists, and shall

be filed not less than ten days before

the beginning of the term at which the

proceeding is to be heard, or good cause

shall be shown for failure to file it

within such time. A party.may file only

one such affidavit in any case. It shall

be accompanied by a certificate of coun-

sel of record stating that it is made

in good faith.

iia tc

Paes

A-62

z CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

As amended May 24, 1949, c. 139, § 65,

63 Stat. 99.

—

A-63

DIAGRAM OF THE ALLEGED CONSPIRACY

EUROPEAN EXPORTERS

Aranci

Brothers Barnier "Unnamed"

—" ees

a ena Rosal Roulet

Courier Courier

Henripierre

Wye Courier

_ RECEIVING AGENTS

CHIEF

RECEIVING

AGENT Cahill Calamaris

(before 9/59) (after 9/59)

(employed to accept delivery for Cahill)

IMPORT GROUP

J. Armone Grammauta Arnold Romano

A-64

DIAGRAM OF THE ALLEGED CONSPIRACY

ALLEGEDLY "PERFORMED SERVICES"

FOR IMPORT GROUP

Dominick Romano Sherbicki

WHOLESALE DISTRIBUTORS

Pacelli Ricucci

ee Guanti —"

Courier

gm sta

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.